Opting In: Where Will Your Organs Go When You Die?

It’s estimated that 20,000 Americans die each year under circumstances that make their organs suitable for transplant. Sadly, each year only about 3,000 people who die with viable organs agree to donate them. That means that 17,000 people die with viable organs that go unused. Meanwhile, there are currently 90,000 Americans on transplant lists. In 1995, about 6,500 people died while waiting for a transplant. What are the laws concerning who controls your body parts, and what things have been done to increase the rate of organ donation?

Here in the U.S., we have an “opt-in” system, meaning that no one is a donor unless he or she actually agrees to donate body parts after death. The vast majority of states have adopted the Revised Uniform Anatomical Gift Act (Revised UAGA). This law is an attempt to make the rules for organ donation and other anatomical gifts consistent from state to state. It also is an effort to encourage anatomical gifts and expand the pool of available donors.

Before the UAGA, a donor’s family had absolute authority to overrule his or her choice to donate body parts after death. The Revised UAGA makes it more difficult for this to happen, although, as a practical matter, donors’ wishes are frequently overruled. It also provides a prioritized list of people who have the power to “opt in” on behalf of a donor, including the parent of a minor child, and an agent acting under a healthcare power of attorney.

Our system is in stark contrast to the laws in other countries, where “opt-out” systems are in place. For example, in France, in the most situations, a deceased person is presumed to have consented to donating body parts unless they opt out. Before organs or other body parts are harvested for donation, doctors are required to exercise reasonable efforts to ensure the deceased has not opted out.

In Austria, the “opt-out” system is taken a step further. Not only does an Austrian citizen have to affirmatively opt-out to avoid donating body parts, there’s no requirement for doctors to find out whether or not the decedent opted out.

There’s no question about the shortage of donors, even under the Revised UAGA. Some states provide extra incentives for opting in as a donor, and there have been proposals that we transition to an opt-out system like our European cousins.

What do you think? Should we presume that people consent to be organ donors unless they affirmatively withhold their consent?

Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124
(800) 846-1555
www.aaepa.com