The donor-card scheme is clearly failing us all. We must get away from the idea that people can allow their bodies and those of their relatives to be simply buried or burned when they die. This is a terrible and cruel waste of organs and tissue that may save life or restore health.
The problem is that we, as a society, have leant over backwards to make sure that potential donors and their relatives are protected against anything that might cause them distress or unease. But the same consideration has not been shown to potential organ recipients and their families. Both are entitled to our concern. There are then two groups of people we must consider: donors and recipients. If we ask what each group stands to lose if their preferences are not respected, we get very different answers. One group stands to lose their lives. The other group has already lost theirs and, at worst, will know prior to death that one of the many things they want will not come to pass.
One way of expressing an equality of concern for both groups of people, bearing in mind what both stand to lose, would be to ensure, through legislation, that all organs from dead bodies should be automatically available at death without any consent being required. The dead, after all, have no further use for their organs; the living do.
Such a proposal, if accepted, would have many advantages. It would mean that virtually all cadaver organs were automatically available and doctors would not have to ask dying people if they consent to their organs being used. Neither would they have to ask grieving relatives such a difficult question at perhaps the worse possible moment.
People think that there would be many religious objections to such a simple proposal. This seems doubtful since there has never been an outcry against the present system in which coroners may order post mortem examinations of the dead without any consent being required. No one may opt out and there is no provision for conscientious objection. Moreover, as is now well known, organs are often removed during such examinations and not replaced. We have all accepted that there is an important public interest at stake here. It matters very much both that murders do not go undetected and that illnesses and accidents that cause death be properly understood so that others may be protected. There is a clear and important public interest here. But how much more so in the case of organ donation. Organs are required to save life, not merely to explain suspicious deaths. If there is a public interest in the one case, there is surely also a strong public interest in providing donor organs to save lives.
Some fears have been expressed that if organs can be automatically used, doctors may have less incentive to strive to keep people alive if there are people waiting to receive organs. There are two important things to note about such fears. The first is that there is absolutely no evidence that people who currently carry donor cards have ever been given anything other than the best possible care because they are eligible as donors. But perhaps even more crucial - if people are worried about their chances of survival - is the fact that they are more likely at the moment to need an organ and not get it than to be ill and not properly treated. So prudential self-interest also supports the automatic availability of cadaver organs.
Some people will have strong objections to their bodies being tampered with after death. Some of their objections will be based on religious belief or cultural practice. Any decent society will try hard to accommodate genuine conscientious objection to whatever practice. Since people with strong, enduring and conscience-based objections to cadaver transplants are likely to be few, it is almost certain that we can accommodate such views and still save the lives of all those who are dying for want of donor organs.
The crunch, of course, comes when this is not the case and conscientious objection will cost lives. Then we have a hard choice to make. It is surely far from clear that people are entitled to conscientiously object to practices that will save innocent lives. However, if we make sure that conscientious objection really is just that, and apply tests comparable to those for people who claim conscientious exemption from military service in time of war, it is likely that the exceptions will be sufficiently few for such hard choices to be avoided. We may note that there is no provision, so far as I am aware, for conscientious objection to compulsory post- mortem examinations.
Fully consensual schemes are always best. But when so much is at stake, we must consider even mandatory schemes. The scheme that I have proposed will save lives, and the costs, while significant, are not incompatible with the values of a decent democratic society - as coroner ordered post- mortem examinations demonstrate.
John Harris is Sir David Alliance Professor of Bioethics at the University of Manchester and a former member of the BMA's ethics committee