Written by Elia Battaglia - University of Cambridge, BA Economics
Organ Donation in the UK
Organ donation is the process by which a person (deceased or living) allows for their organ(s) to be transplanted into a recipient in need. Organs are often very scarce and over 400 people died waiting for a transplant in the UK last year (2022). Since May 20th, 2020, the law of consent in England regarding organ donation is as follows: ‘It will be considered that you agree to become an organ donor when you die if: you are over 18, have not opted out and are not in an excluded group’. A person part of an excluded group is defined as one that is: under the age of 18, lacking the mental capability to understand the new arrangements, not permanently living in England or someone who has lived in England for less than 12 months prior to their death.
Initially vowed by Theresa May in 2017, the opt-out system’s bill finally passed through Parliament on 26th February 2019 and came into effect in May 2020. Wales’s early implementation of the soft opt-out system in 2015 reaped instant benefits when it came to decreasing organ scarcity within the country and saw Scotland, England and the Channel Islands all follow in its footsteps briefly after. Compared to some decades ago, the UK has taken the right approach towards prioritising the importance of no-action choices, also known as defaults.
Figure 1 - Harvard Law School
Nudge Theory & Defaults
Implementing newly revised policies with the importance of defaults in careful consideration can help policymakers become more effective, as shown by data that we shall explore. Especially in the case of organ donation, its effects could not be more instant and direct, and its benefits could not be of a higher significance. Economic instruments such as nudges and defaults are becoming of crucial use to guide consumers and households into making, what is deemed by the policymaker, the best choice. This is because when presented with a choice, several factors hinder a consumer’s potential to make a perfectly rational decision on their own and hence, just because a choice exists, this doesn’t mean consumers will pick the one which increases their total utility by the greatest amount. Utility in economics refers to the satisfaction an individual gains from consuming a good, or in this case, making a choice. The development of behavioural economics has helped account for highly convenient assumptions, like complete rationality, in the world of economic modelling. Naturally, even prior to the development of behavioural economics, it was no secret that no individual is perfectly rational, or that individuals possess behavioural biases and constraints. However, the acceptance of such theories in the world of policymaking has been and will continue to be, an asset to society.
In the case of organ donation, let us explore why the opt-in choice (explicit consent) may not be the optimal option to implement and why opt-out is now becoming more popular among global economies (ethical issues explored separately- see 3). When presented with a choice, consumers often view the default as a recommendation by the policymaker and hence are much more likely to leave the default unchanged, unless they feel very strongly about the topic. This is proven true by an experimental study carried out by Daniel G. Goldstein and Eric J. Johnson when exploring the impacts of defaults on the effective choices made by individuals. Goldstein and Johnson gave 161 people one of three options:
(I) Confirm their status as an organ donor or change their status (opt-out).
(II) Confirm their status as a non-organ donor or change their status (opt-in).
(III) Select one of two choices with no prior status being already selected (no default).
To account for social biases and effort-related explanations, all choices were made as simple as a mouse click and no person could see what other people’s responses were. The results found that when presented with a neutral choice, 79% of people chose to opt in (to be an organ donor). As the neutral choice is entirely based on what the individual picks when no form of influence from the policymaker is present, you’d expect this figure to be relatively consistent with the other two choices, which it is when the policy is opt-out, at 82%. However, the power of the default is found to nearly halve the number of donors when the policy is set to opt-in at 42%. This may seem intuitive at first, but if an individual’s ‘true wish’ is supposedly represented by the neutral condition, how can the simple format of the question nearly halve the revealed donation rates?
In fact, the effect of default choices is found to be even greater within real-world policies than what is found by Goldstein and Johnson. In this experiment, all individuals are presented with a choice, something that is never the case in the real world. Furthermore, rejecting the default couldn’t be easier within this survey, but in reality, legal paperwork, emails, phone calls and many other extraneous factors could create ‘sludge’ and discourage individuals from making any choice at all, giving rise to further power of the default. Sludge is a term coined by American economist Richard Thaler in his co-authored book ‘Nudge’ and refers to anything within the process of decision-making that hinders users from making a specific choice, usually for the benefit of the policymaker. For example, has terminating a streaming service’s subscription ever been easy? It is important to note that sludge and nudges may be seen as counterparts and neither directly force the individual into a decision, they simply make it easier or harder to pick a certain option. Sludge, coupled with the disregard by many individuals for the short-term effect of the decision at hand, means that choice defaults become an important tool in policymaking as seen in organ donation, pension plans and insurance for example.
Figure 2 - Tebubio
Issues with opt-out
Although opt-out may seem like the most logically sensible option in this context as it has clearly been shown to increase organ donors and decrease organ scarcity, there are many issues facing regulations that presume consent around the world. For this reason, some countries still adopt an opt-in system, like most US states. For example, individuals may feel offended by the fact that their country assumes their consent to donate their organs when they die, even if they would agree to it given the explicit and compulsory choice.
Furthermore, speculation on the fairness of organ donation waiting lists has been raised. Instances of ‘highest bidders’ have led to organs being sold to wealthier patients, regardless of their place on the waiting lists. This raises ethical issues as to whether the transplant system allocates organs fairly and efficiently. Inevitably, there will also be individuals who will not agree with the default and do not know how to change it, may not be aware of the change in legislation or even die before being able to change it. Although these cases are rare, they still represent examples of where the policy has failed to give every person the right to express their preferred choice.
Conclusion
Presumed consent (opt-out) and explicit authorisation (opt-in) have thus far been considered as the only two options that policymakers can choose from within organ donation. The reality is that these are umbrella terms, and a range of different policies can be derived from these, e.g., hard consent, soft consent, mandated choice, etc. Other regulations can be combined to make more complex laws such as the involvement of next of kin with opposing views to the deceased and statements left by the deceased in their will.
Opt-out can be argued to be the most beneficial as it saves the most lives due to the high number of organ donors available when this policy is implemented. Opt-in can be argued to be less socially problematic as individuals feel less manipulated into making a choice they may not want to make, despite not being explicitly forced into a decision. When proposing new legislation, especially on ethically charged subjects, it's crucial to find a balance between honouring people's freedom of choice and potentially limiting individual choices to attain the intended results.
Sources:
‘Nudge’ by Richard H. Thaler and Cass R. Sunstein
Can Defaults Save Lives? The Case of Organ Donation: