Prima facie, the Chief Medical Officer’s initiative to save more lives by presuming people willing to have their organs removed after they die and transplanted into those who need them seems a good idea. However as the glaze of goodwill peels away, potentially undesirable elements emerge. It does appear strange that a country that prides itself on liberty would implement a law that exerts its authority over the organs of a person without their active consent. But would ratification of this proposal actually affect our individual rights? And if so, are those rights outweighed by the urgency of the need to donate organs?

Sir Liam Donaldson’s report which addresses the grave shortage of organs for transplantation says that on average one patient a day dies on the transplant waiting-list, emphasizing the urgency of the situation. Unsurprisingly, the current ‘opt-in’ approach has done little to increase the number of donated organs as few people opted in and the relatives’ permission (for various reasons) was not always gained.

Professor Donaldson’s approach would mean people would have to register their intention not to have their organs harvested, and their silence will imply consent. This has already been adopted in some other European countries and has apparently helped increase the supply of healthy organs. He thus argues that it is a painless way to ease the crisis regarding transplant waiting-lists in this country.

On the other hand it has been said that this new approach to organ donation will stifle the rights of individuals. The ease with which one would be able to opt out of organ donation is a key concern. Furthermore, it is argued that a fundamental question of liberty, namely what happens to our physical remains when we die, could be taken out of our hands.

For example, in Singapore, where the law presumes that all citizens except Muslims are willing organ donors unless they explicitly opt-out, a previously healthy lorry driver was rendered brain-dead after suffering a stroke at work, followed by a cerebral haemorrhage in hospital. His family still had hope that he would recover and begged doctors to give him the chance. However, the harvesting surgeons waited for just 24 hours before proceeding.

Thus the liberty of the individual was sacrificed for a utilitarian cause. This ideology may be regarded as atypical in a secular society. However, our freedoms are often not as unconstrained as we think. The law is a perennial limit to our liberties in every aspect of our lives, even in the privacy of our own homes, because liberty must not jeopardize the moral fabric of society. Thus, interpreting liberty is a delicate and complex matter.

The opt-out approach to organ donation differs from most laws in that it imposes on the citizen an obligation to do ‘good’ as the default position, requiring a positive act ‘opting out’ of that position. This approach poses a further dilemma as it presumes patient’s wishes at a time when difficult decisions need to be made immediately. Furthermore, as demonstrated by the Singaporean case, the patient may not be in a position to make those decisions. It is thus arguable that the law has no right to interfere with what is typically regarded as a positive moral act which should be the reserve choice of the individual. It may be that moral acts should start to become compulsory; but then arguably they cease being moral.

The potential harm and distress of compulsory donating is not easily perceptible. It is difficult to fully comprehend the positive and negative outcomes, particularly with a matter seen as being one of personal choice. But there is a possible analogy: autopsies are regularly performed on the deceased in the public interest (and the prior permission of the deceased is not necessary). Perhaps this debate will be similar to that of abortion in that it will be met in some cases with strong opposition but overall will contribute to the successful functioning of a society. The chances of success will depend on the ease with which individuals will be able to overcome the bureaucratic process in order to preserve their rights to have their wishes respected after death.