During our lives we exercise control over our bodies. We have to give informed consent before any medical procedures are performed upon us. In the recent case of Montgomery the Supreme Court emphasised the importance of patient autonomy. Should the same standards apply to procedures carried out on us after we are dead?
The state has powers to exercise control over our dead bodies. It can insist on a post mortem, depending on the manner of my death. It might prevent my body being disposed of in exactly the manner I desire. In principle a law could be passsed to allow the state to remove organs for transplantation irrespective of the living wishes of the deceased, perhaps with some very limited exceptions. I am not sure that there are many persuasive, rational arguments against such a law, but my guess is that it would be deeply unpopular. Most people do care what happens to their bodies after they die and they want the autonomy to decide whether their organs are removed or not.
Instead of a law giving doctors the power to remove organs irrespective of others' wishes, in both England and Wales the state accepts that it can only remove organs after death with consent. In England the consent must be expressly and positively given. In Wales, from today, it is presumed.
Presumed consent is not consistent with informed autonomy. Of course those who truly consent will choose not exercise their right expressly to reverse the presumption, and those who do not consent will take steps to reverse the presumption by making that known. But others will be presumed to consent even though they do not want their organs to be removed or have never even given the matter any thought. They may not be aware of the new presumption, they may not get round to doing anything about it, they might be confused about the law. Not everyone reads the newspapers or watches the television news. The presumption has been introduced to increase the number of organs available for donation. If it achieves that goal then, at least in part, that will be because an increased number of organs will be removed from people who did not truly want their organs to be removed. Those people are not "donors".
If you believe that we ought to have true autonomy over our bodies even after we are dead, then a law of presumed consent is objectionable. Imagine presumed consent applying to the living patient.
Every news story about presumed consent over the last few days has focused on a patient awaiting transplantation. It is a truly awful position in which to find yourself. We desperately need more organs to be donated. At the same time, if there is a shortage, then it must be that many people are reluctant to consent to their organs being removed. I have carried a donor card since I was 18. You can register online in two minutes. It is not difficult and yet millions do not do it, presumably because they do not feel sufficiently motivated to donate.
The state can increase the number of donor organs by a campaign of information, dialogue with patients and training of medical staff, to encourage more donation with consent; by introducing a law giving the state power to remove organs from the dead even without consent; or by presumed consent. The first has the virtue of consistency with the approach to consent taken for living patients and gives full respect for autonomy. It would require an effort by the state to engage with people, explain how donation works and to allay their concerns and fears. The second would I suspect be deeply unpopular and would doubtless be characterised as Orwellian although the state already exercises other powers over our dead bodies. The third does not require the state to make the same efforts as the first - just presume consent and more organs will be "donated". It relies on ignorance and apathy to make more organs available, and sets an example of the state presuming our consent which many will hope will not be adopted in other spheres.