Organ transplant and presumed consent: towards an "opting out" system

This paper examines the "opt out" system of organ donation wherein the State permits removal of tissue and organs posthumously unless an express objection is made by the person prior to the death. This paper examines the need for "presumed consent" and the jurisprudential arguments in support of it. The social contract theory and the sociological approach based on the principle of "common good" support this system. However, the ethical concerns raised while implementing such a system are debatable. It is for societies to evaluate the situation and make a choice between "ethics"and "common good". The answer may not be obvious in a country like India where religion may supersede the question of life and death. The paper critically assesses both the issues, and concludes that presumed consent may be a viable method of addressing the organ shortage in India. However, we need public discourse and public awareness to change people's attitude to this concept.