Normative consent and organ donation: a vindication

In an earlier article, I argued that David Estlund's notion of 'normative consent' could provide justification for an opt-out system of organ donation that does not involve presumptions about the deceased donor's consent. Where it would be wrong of someone to refuse their consent, then the fact that they have not actually given it is irrelevant, though an explicit denial of consent (as in opting out) may still be binding. My argument has recently been criticised by Potts et al, who argue that such a policy would involve taking organs from people whose organs should not be taken and would be a recipe for totalitarianism. The present response seeks to rebut both the ethical and political objections. I argue that people can indeed be under a moral obligation to donate their organs, even if they are not technically dead at the time and their donation does not save anyone else's life. Moreover, I argue that an opt-out system-unlike mandatory donation-is not totalitarian because it preserves the right of individuals to act morally wrongly, by opting out when they have no good moral reason to do so. The policy I propose is neither immoral nor totalitarian.