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

(CNS News)

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. …”