Nudging People to Decide

inherent in the practice of organ donation. However, ideas about how the system should be organised and how to make people decide vary among donors, which will be discussed in the following.

I think there are many people who actually would like to be organ donors but haven’t gotten around to do it [registering], and I think that it’s a rather small percentage that would actively deregister. So, I think you could get many more to join by doing it the other way around [through presumed consent] … Those who don’t want to be it [organ donors] will deregister.

(Magnus, 27)

This notion that many more people would become organ donors with a presumed consent default is one of the main arguments made by Thaler and Sunstein (2009) in their work on nudging in organ donation. While studies on the effect of presumed consent by Johnson and Goldstein (2004) as well as Abadie and Gay (2006) support this argument, it is contradicted by Farrell’s (2015) finding that nudging only causes a short-term effect on increasing registration rates. This accentuates that nudging in organ donation is a contested area and that further research should be conducted to determine in more detail how presumed consent could or should be implemented.

4.8.3.1.1. The Status Quo Bias

Present in both quotes above is the notion that there is a difference between the effort of actively doing something to join and actively having to decline. This notion of inertia and contentment with the status quo are the main reasons why Thaler and Sunstein (2009) suggest that the default setting in organ donation should be changed from informed to presumed consent, as people often stick with the status quo despite being in favour of another option. The idea is furthermore that if you do not want to partake, you will make the effort to opt-out. In line with this thought, Mona, 63, declares that it would be better to have presumed consent than informed consent because it is “bloody difficult” to get people to register. Both Mona and Lisa, 27, furthermore note that presumed consent may lead people to talk about organ donation; something that is currently absent in the practice, which we will elaborate on later. While Mona and Lisa suppose that it will get ordinary people to talk about organ donation, Thaler and Sunstein (2009) state that it also makes it easier for medical staff as they will be approaching relatives of a presumed donor as opposed to a non-presumed donor, which is the case with informed consent.

4.8.3.2. The Type of Society You Want

The donors in favour of presumed consent compare it to other aspects of Danish society, which you automatically take part in. Marc, 23, compares presumed consent with membership of the Lutheran Church of Denmark and its tax, which you actively have to deregister from. Another comparison is made to military service:

Personally, I have a hard time seeing the problem in automatically being an organ donor … This [organ donation] is so important. You know, boys today are born to do military service, and we’re not at war, right? They can then opt-out later in life, or what do I know, but they are actually born to do military service … Military service is historically based but I don’t think it’s even a distinct paradigm shift if we were to automatically be organ donors, because I feel it conforms to the society we’re living in.

(Emma, 46)

While Emma believes that presumed consent coheres with Danish society, Lucas, 67, worries about the type of society presumed consent entails:

I believe we should stick with informed consent because if you go too far in the direction of presumed consent, you can come to regard humans as an automatic resource, which society, due to good intentions, then can harvest. At minimum, it requires a very thorough discussion of which kind of society we want to have.

(Lucas, 67)

What Lucas fears is that presumed consent is a step towards what Thaler and Sunstein (2009) call routine removal. Routine removal entails that the state owns the organs of any deceased citizen and can do with them, as it sees fit. Lucas does however acknowledge that presumed consent can take many forms and ponders, if the family would be able to refuse donation. If the family is able to refuse donation under presumed consent, the nudge would be designed in a manner similar to that suggested by Whyte et al. (2012). Lucas ponders further on who would own the body in the case of presumed consent; if it is the state, the family or the donor. If the family can reject donation,

it would be the family that owns the body, which he is not in favour of either. Evident here is that bodily autonomy is important to Lucas, which is why he believes informed consent to organ donation should be preserved. A notion shared by Mike, 35, who also has concerns about the type of society presumed consent entails. Mike believes that Danes are already automatically signed up for too many things:

I believe we should stick with informed consent. I believe that about everything, not just about organ donation but also membership of the Lutheran Church of Denmark and ads in the mailbox, and all that stuff. I don’t understand why we automatically have to be signed up for everything, which you then have to resign from … and it’s the same with this [organ donation]. I believe it should be entirely up to the individual if he or she wants to do it, but you could make it mandatory to say yes or no.

(Mike, 35)

It is somewhat paradoxical that the Lutheran Church of Denmark is used as an argument both in favour of and in opposition to presumed consent. It seems to serve as proof that Lucas is right when saying that it is a matter of how you see society and what kind of society you want to live in.

While he and Mike believe that presumed consent is a turn for the worse, most other donors believe that it is compatible with how things already are and not in conflict with the individual’s bodily autonomy.

The lack of autonomy over one’s own body is however one of the main critique points of nudges in organ donation. It is among others presented by Farrell (2015) who suggests that presumed consent has the potential to decrease the legitimacy of the practice, which is a critical aspect as already stated. The Danish Council on Ethics’ main argument against introducing presumed consent is also centred on the concept of ownership and autonomy (Det Etiske Råd, 2017). The Council states that maintaining ownership of one’s body prevents others from lawfully accessing or using it without explicit consent. Individuals should furthermore be able to actively decide and declare what is going to happen to the body and its parts as well as have the right to be in doubt about the same.

While neither Lucas, 67, or Mike, 35, are in favour of presumed consent, they believe that mandated choice could be a way forward. This would, in their view, conflict less with the individual’s autonomy, thus be more in line with the type of society they want. Lack of support for presumed consent is the main reason why Thaler and Sunstein (2009) recommend mandated choice in organ donation. While most donors favour presumed consent, many of them also see potential in mandated choice, should presumed consent not be an option.