Consent Cannot Be Presumed because ‘Brain Death’ Is Not True Death

Doyen Nguyent, 2019

Abstract The marked decline in organ donation in Germany in recent years has once again brought the debate on the opt-out policy into the spotlight of German politics. Until now, Germany has remained one of the few European countries where the optin system for ‘postmortem’ organ donation is still in force. In mid-2018, however, the Health Minister, J ens Spahn, proposed a bill to change the current opt-in to an opt-out system in order to increase the supply of transplant organs. This bill is to be decided by the Bundestag in the coming months of this year (2019). The current debate in Germany on organ donation legislation effectively touches not just on the controversial concept of presumed consent (the basis for the opt-out policy) but also on the intractable ‘brain death’ controversy, because the bulk of alleged ‘postmortem’ organs are removed from brain-dead donors. The analysis in this paper demonstrates that presumed consent, as it is being practiced currently, is not a consent but a fiction. Presumed consent (and therefore, the opt-out system) would be valid only if the public were to be fully informed about the factual reality of what ‘bmin death’ truly is. A review of the historical events, and the manuscript-drafts of the Harvard Report, brings to light the inherent utilitarian link between the interests of transplantation and the introduction of ‘brain death’ in 1968. ‘Brain death’ is not true death but a medicolegal construct whereby deeply comatose patients (deemed to be in irreversible coma) are declared ‘Brain Death,’ Organ Donation, and Presumed Consent 5 dead so that organs can be legally removed. Therefore, before introducing any opt-out legislation on organ donation, the State must first fulfill its duty to inform its citizens that they would not be dead yet when organ procurement begins, and that, in fact, they would be killed by the process.