Obama Regulation Czar Advocated Removing People’s Organs Without Explicit Consent

September 3, 2009 - 6:35 PM
Cass Sunstein, President Barack Obama's nominee to head the Office of Information and Regulatory Affairs (OIRA), has advocated a policy under which the government would "presume" someone has consented to having his or her organs removed for transplantation into someone else when they die unless that person has explicitly indicated that his or her organs should not be taken.

Cass Sunstein speaking at Harvard Law School. (Photo: Matthew W. Hutchins, Harvard Law Record.)

(CNSNews.com) – Cass Sunstein, President Barack Obama’s nominee to head the Office of Information and Regulatory Affairs (OIRA), has advocated a policy under which the government would “presume” someone has consented to having his or her organs removed for transplantation into someone else when they die unless that person has explicitly indicated that his or her organs should not be taken.
 
Under such a policy, hospitals would harvest organs from people who never gave permission for this to be done.  
 
Outlined in the 2008 book “Nudge: Improving Decisions About Health, Wealth, and Happiness,” Sunstein and co-author Richard H. Thaler argued that the main reason that more people do not donate their organs is because they are required to choose donation.
 
Sunstein and Thaler pointed out that doctors often must ask the deceased’s family members whether or not their dead relative would have wanted to donate his organs. These family members usually err on the side of caution and refuse to donate their loved one’s organs.
 
“The major obstacle to increasing [organ] donations is the need to get the consent of surviving family members,” said Sunstein and Thaler.
 
This problem could be remedied if governments changed the laws for organ donation, they said. Currently, unless a patient has explicitly chosen to be an organ donor, either on his driver’s license or with a donor card, the doctors assume that the person did not want to donate and therefore do not harvest his organs. Thaler and Sunstein called this “explicit consent.”
 
They argued that this could be remedied if government turned the law around and assumed that, unless people explicitly choose not to, then they want to donate their organs – a doctrine they call “presumed consent.”
 
“Presumed consent preserves freedom of choice, but it is different from explicit consent because it shifts the default rule. Under this policy, all citizens would be presumed to be consenting donors, but they would have the opportunity to register their unwillingness to donate,” they explained.
 
The difference between explicit and presumed consent is that under presumed consent, many more people “choose” to be organ donors. Sunstein and Thaler noted that in a 2003 study only 42 percent of people actively chose to be organ donors, while only 18 percent actively opted out when their consent was presumed.
 
In cases where the deceased’s wishes are unclear, Sunstein and Thaler argued that a “presumed consent” system would make it easier for doctors to convince families to donate their loved one’s organs.
 
Citing a 2006 study, Thaler and Sunstein wrote: “The next of kin can be approached quite differently when the decedent’s silence is presumed to indicate a decision to donate rather than when it is presumed to indicate a decision not to donate. This shift may make it easier for the family to accept organ donation.”
 
The problem of the deceased’s family is only one issue, Sunstein and Thaler said, admitting that turning the idea of choice on its head will invariably run into major political problems, but these are problems they say the government can solve through a system of “mandated choice.”
 
“Another [problem] is that it is a hard sell politically,” wrote Sunstein and Thaler. “More than a few people object to the idea of ‘presuming’ anything when it comes to such a sensitive matter. For these reasons we think that the best choice architecture for organ donations is mandated choice.”
 
Mandated choice is a process where government forces you to make a decision – in this case, whether to opt out of being an organ donor to get something you need, such as a driver’s license.
 
“With mandated choice, renewal of your driver’s license would be accompanied by a requirement that you check a box stating your organ donation preferences,” the authors stated. “Your application would not be accepted unless you had checked one of the boxes.”
 
To ensure that people’s decisions align with the government policy of more organ donors, Sunstein and Thaler counseled that governments should follow the state of Illinois’ example and try to influence people by making organ donation seem popular.
 
“First, the state stresses the importance of the overall problem (97,000 people [in Illinois] on the waiting list and then brings the problem home, literally (4,700 in Illinois),” they wrote.
 
“Second, social norms are directly brought into play in a way that build on the power of social influences [peer pressure]: ‘87 percent of adults in Illinois feel that registering as an organ donor is the right thing to do’ and ’60 percent of adults in Illinois are registered,’” they added.
 
Sunstein and Thaler reminded policymakers that people will generally do what they think others are doing and what they believe others think is right. These presumptions, which almost everyone has, act as powerful factors as policymakers seek to design choices.
 
“Recall that people like to do what most people think is right to do; recall too that people like to do what most people actually do,” they wrote. “The state is enlisting existing norms in the direction of lifestyle choices.”
 
Thaler and Sunstein believed that this and other policies are necessary because people don’t really make the best decisions.
 
“The false assumption is that almost all people, almost all of the time, make choices that are in their best interest or at the very least are better than the choices that would be made [for them] by someone else,” they said.
 
This means that government “incentives and nudges” should replace “requirements and bans,” they argued.
 
Neither Sunstein nor Thaler currently are commenting on their book, a spokesman for the publisher, Penguin Group, told CNSNews.com.
 
In a question-and-answer section on the Amazon.com Web site, Thaler and Sunstein answered a few questions about their book.
 
When asked what the title “Nudge” means and why people need to be nudged, the authors stated: “By a nudge we mean anything that influences our choices. A school cafeteria might try to nudge kids toward good diets by putting the healthiest foods at front.
 
“We think that it's time for institutions, including government, to become much more user-friendly by enlisting the science of choice to make life easier for people and by gently nudging them in directions that will make their lives better,” they wrote.
 
“…The human brain is amazing, but it evolved for specific purposes, such as avoiding predators and finding food,” said Thaler and Sunstein. “Those purposes do not include choosing good credit card plans, reducing harmful pollution, avoiding fatty foods, and planning for a decade or so from now. Fortunately, a few nudges can help a lot. …”