The organ donor shortfall in the UK has prompted calls to introduce legislation to allow for presumed consent: if there is no explicit objection to donation of an organ, consent should be presumed. The current debate has not taken in account accepted meanings of presumption in law and science and the consequences for rights of ownership that would arise should presumed consent become law. In addition, arguments revolve around the rights of the competent autonomous (...) adult but do not always consider the more serious implications for children or the disabled. (shrink)

The ethics of deceased organ procurement (OP) is supposedly based on individual consent to donate, either explicit (opt-in) or presumed (opt-out). However, in many cases, individuals fail to express any preference regarding donation after death. When this happens, the decision to remove or not to remove their organs depends on the policy’s default option or on family preferences. Several studies show that in most countries the family plays a significant and often decisive role in the process of decision-making (...) for OP. Depending on the country, the family may be allowed to take different kinds of actions in different situations, and this may be granted either by law or by clinical practice only. This adds much complexity to the usual classification of consent policies in two categories: opt-in and opt-out. Here we propose a novel and comprehensive taxonomy of the models of consent for OP according to three variables: (1) the deceased’s wishes, if any, (2) family wishes, if any, and (3) default policies. By analysing these models of consent, we show that they rely on at least three different concepts of autonomy: individual autonomy, relational autonomy, and family autonomy. In light of this analysis, we discuss the ethical debates surrounding two policy approaches: presumed consent and family veto. (shrink)

This chapter contains sections titled: The Logical Problem of Evil The Evidential Problem of Evil The Evil God Hypothesis and the Problem of Good Reverse Theodicies Notes.

Several European countries are approving legislative reforms moving to a presumed consent system in order to increase organ donation rates. Nevertheless, irrespective of the consent system in force, family's decisional capacity probably causes a greater impact on such rates. In this contribution we have developed a systematic methodology in order to analyse and compare European organ procurement laws, and we clarify the weight given by each European law to relatives' decisional capacity over individual's preferences (expressed or (...) not while alive) regarding the destination of his or her organs after death. In this sense, the results constitute the first comprehensive and comparative legislative mapping on European transplantation laws. (shrink)

This article considers issues concerning cases where the use of placebo is lawful or is not lawful under aspects of German criminal law. It will differentiate between cases of individual therapy and cases of supervised experiments within the scope of medical tests. Thereby, it reveals that a medication of placebo with regard to an individual patient seems to be lawful if there is no alternative possibility of a better treatment using a chemically effective medicine and if the limits of (...) class='Hi'>presumed consent are complied with. On the other hand, in the context of the supervised experiment, the assignment of a patient to a group treated with placebo is only lawful if the patient has been fully informed about the possibilities of a treatment and if the patient has given consent to it. (shrink)

This paper argues that the demands of respect for autonomy in the context of biobanking are fewer and more limited than is often supposed. It discusses the difficulties of agreeing a concept of autonomy from which duties can easily be derived, and suggests an alternative way to determine what respect for autonomy in a biobanking context requires. These requirements, it argues, are limited to provision of adequate information and non-coercion. While neither of these is in itself negligible, this is a (...) smaller set of demands than is often suggested. In particular, it is argued here that securing ‘one time consent’ is consistent with respect for autonomy. Finally, the paper notes that while the demands of respect for autonomy may be less than some suppose, respecting autonomy is not the only way in which biobanks and their users may have moral duties to donors. (shrink)

We examined participants' reading and recall of informed consent documents presented via paper or computer. Within each presentation medium, we presented the document as a continuous or paginated document to simulate common computer and paper presentation formats. Participants took slightly longer to read paginated and computer informed consent documents and recalled slightly more information from the paginated documents. We concluded that obtaining informed consent online is not substantially different than obtaining it via paper presentation. We also provide (...) suggestions for improving informed consent-in both face-to-face and online experiments. (shrink)

A central principle of bioethics is “subject autonomy,” the acknowledgement of the primacy of the informed consent of the subject of research. Autonomy requires informed consent — the assurance that the research participant is informed about the possible risks and benefits of the research. In fact, informed consent is difficult when a single drug is being tested, although subjects have a baseline understanding of the testing of a pharmacological agent and the understanding that they can stop taking (...) the drug if there were an adverse event. However, informed consent is even less easily achieved in the modern arena of complex new molecular and cellular therapies. In this article, we argue that as science confronts new issues such as transplantation of stem cell products, which may live within the participant for the rest of their lives, researchers must carefully consider and constantly re-examine how they properly inform subjects considering participation trials of these novel therapeutic strategies.For example, the manufacture of a vial of a cell product that consists of a collection of growing cells is very different than the production of a vial of identical pills, which can be presumed to be identical. The scientific concepts on which these cellular approaches are based may seem alien and incomprehensible to a research subject, who thinks of a clinical trial as simply the selection and testing of the most efficacious pharmaceutical agent already proven to work in preclinical animal studies. The research subject would be wrong. (shrink)

Unconsented pelvic exams under anesthesia are assaults cloaked in defense of healthcare education. Preemptive linguistic qualifiers “presumed” or “implied” attempt to justify such violations with flippancy toward their oxymoronic implications: to suggest a priori that consent can be assumed undermines its otherwise standalone social, ethical, and medico-legal reverence. In this paper I conceptualize “medical sexual assault” and argue that presumed consent for intimate exams exemplifies its definition. By bluntly describing pelvic exams as “penetration,” this work aims (...) to reify the intimate reality of the clinical label “pelvic exam” and to call attention to cisheteronormative and androcentric assumptions involved in its practice. Additionally, this scholarship seeks to create a foundation toward broader work in conceptualizing clinical rape culture. Given recent national survey data indicating a surprising frequency of unconsented intimate exams, detailed language as to their problematics is necessary for ongoing legal and ethical efforts. Explicit consent for intimate exams must be the standard of care for conscious and unconscious patients. (shrink)

On 19 December 2008 the Official Journal of Belgium published the ‘Law regarding the procurement and use of human body material destined for human medical applications or for scientific research purposes’. This paper will comment on various aspects of the Law: its scope of application (what is understood by ‘body material’?); its concept of ‘residual human body material’ (with far-reaching implications for the type of consent required for research); the nature of actions with and uses of human body material (...) that are explicitly prohibited; the right of donors to be informed of relevant information revealed by the use of their body material; and the special responsibilities placed on hospital ethics committees. As will be argued in this paper, several of these provisions are highly problematic from an ethical point of view, especially those relating to consent. Meanwhile, the Minister of Public Health has asked the Belgian Advisory Committee on Bioethics for advice on the incorporation of the ‘presumed consent’ model, that applies to post mortem organ donation, into the biobank Law’s provisions on post mortem removal and use of body material. This aspect of the Law effectively extends the ‘presumed consent’ regime, both from organs to body material in general, and from therapeutic uses to research uses. (shrink)

Biobanking policy needs to take into account the concept of human dignity, because this concept is enshrined in both international and South African law. The accepted understanding of informed consent, which is also required by law, is inadequate for biobanking because it is often not possible to inform people of possible uses of their stored tissue. If human dignity is understood as a multidimensional concept that corresponds to the multidimensionality of the human person, then human dignity can be said (...) to be both (i) something that all people already have, as an inviolable worth that inheres in their potential to live meaningful lives; and (ii) something that people seek to realize through morally good behavior in historically-situated relationships. This understanding of human dignity can be used as both an interpretive lens and a normative vision. It is interpretive because it reveals how various attitudes to biobanking and the various proposed consent regimes--presumed, broad, and specific--might all be underpinned by appeals to human dignity. It is a normative vision because, given that all of these positions can be underpinned as morally meaningful with respect to human dignity, provision should be made for all of the possible consent regimes in law and in biobanking practice. Nonetheless, where compromise cannot be avoided, then, at the very least, human dignity understood as the human potential to live a meaningful moral life must be protected. (shrink)

I argue that a policy of presumed consent for cadaveric organ procurement, which assumes that people do want to donate their organs for transplantation after their death, would be a moral improvement over the current American system, which assumes that people do not want to donate their organs. I address what I take to be the most important objection to presumed consent. The objection is that if we implement presumed consent we will end up (...) removing organs from the bodies of people who did not want their organs removed, and that this situation is morally unacceptable because it violates the principle of respect for autonomy that underlies our concept of informed consent. I argue that while removing organs from the bodies of people who did not want them removed is unfortunate, it is morally no worse that not removing organs from the bodies of people who did want them removed, and that a policy of presumed consent will produce fewer of these unfortunate results than the current system. (shrink)

Organ transplant shortages are ubiquitous in healthcare systems around the world. In response, several commentators have argued for the adoption of an opt-out policy for organ transplantation, whereby individuals would by default be registered as organ donors unless they informed authorities of their desire to opt-out. This may potentially lead to an increase in donation rates. An opt-out system, however, presumes consent even when it is evident that a significant minority are resistant to organ donation. In this article, we (...) defend a mandated choice framework for consent to deceased organ donation. A mandated choice framework, coupled with good public education, would likely increase donation rates. More importantly, however, a mandated choice framework would respect the autonomous preferences of people who do not wish to donate. We focus in particular on the Australian healthcare context, and consider how a mandated choice system could function as an ethical means to increase the organ donation rate in Australia. We make the novel proposal that all individuals who vote at an Australian federal election be required to state their organ donation preferences when voting. (shrink)

In the wake of scandals about the unauthorised retention of organs following postmortem examination, the issue of valid consent has returned to the forefront. Emphasis is put on obtaining explicit authorisation from the patient or family prior to any medical intervention, including those involving the dead. Although the controversies in the UK arose from the retention of human material for education or research rather than therapy, concern has been expressed that public mistrust could also adversely affect organ donation for (...) transplantation. At the same time, however, the British Medical Association continues to call for a shift to a system of presumed consent for organ transplantation. This apparent inconsistency can be justified because valid distinctions exist between the reasons requiring explicit consent for retention and the acceptability of presumed consent for transplantation. This paper argues for introducing a system of presumed consent for organ donation, given the overwhelming expressions of public support for transplantation. Ongoing legislative review in the UK provides an ideal chance to alter the default position to one where potential donors can simply acquiesce or opt out of donation. Combined with consultation with their relatives, this could be a much better method of realising individuals’ wishes. It would also achieve a better balance between the duties owed to the deceased and those owed to people awaiting a transplant. (shrink)

Every day in the United States 17 people die waiting for an organ transplant. The waiting list for organs, which now contains the names of 82,000 people, has more than tripled in the last 10 years. The U.S. policy on who can donate an organ is based both on previous consent of the potential donor and on the consent of the donor's family. This foundation greatly limits the number of potential donors. Spain is the world's leader in providing (...) organs to its population, and the underlying principle of their policy on donors in presumed consent. That is, those people who have not expressly opposed donating their organs are considered eligible for donation. This policy, along with a plan of public education and a strong infrastructure for organ procurement, is what has enhanced their donor rates. Spain is not alone: other countries have seen the benefits of presumed consent and the limits of opt-in systems. The United States must put to use the experiences of these countries to stem the tide of organ shortage and give new life to those desperately awaiting organs. a. (shrink)

“Opt-out” organ procurement policies based on presumed consent are typically advertised as being superior to “opt-in” policies based on explicit consent at securing organs for transplantation. However, Michael Gill has argued that presumed consent policies are also better than opt-in policies at respecting patient autonomy. According to Gill’s Fewer Mistakes Argument, we ought to implement the procurement policy that results in the fewest frustrated wishes regarding organ donation. Given that the majority of Americans wish to (...) donate their organs, it is plausible that a presumed consent policy would result in fewer frustrated wishes compared to the current opt-in policy. It follows that we ought to implement a policy of presumed consent. In this paper, I first consider and find wanting an objection to the Fewer Mistakes Argument developed recently by Douglas MacKay. I also consider an objection put forth by James Taylor but argue that there is a methodological reason to prefer my own argument to Taylor’s. Finally, I argue for two theses: first, that Gill’s major argument in favor of the crucial premise of the Fewer Mistakes Argument is flawed, and second, that the major premise of the Fewer Mistakes Argument is false. (shrink)

Current methods of obtaining consent for emergency neonatal research are flawed. They risk aggravating the distress of parents of preterm and other sick neonates. This distress, and the inevitable time constraints, compromise understanding and voluntariness, essential components of adequately informed consent. Current practice may be unjust in over-representing babies of more vulnerable and deprived parents. The research findings may thus not be generalisable. Informing parents antenatally about the possible need for emergency neonatal research, with presumed consent (...) and scope for opting out, would address these problems. It would spare parents of sick neonates, already terrified by their baby's illness, further distress. Experience with opting out suggests that recruitment might increase, thus generating earlier results, without compromising parental understanding of the nature and purpose of the research. (shrink)

The ancient practice of metzitzah b'peh, direct oral suction, is still practiced by ultra-Orthodox Jews as part of the religious rite of male newborn circumcision. Between 2000 and 2011, 11 children have died in New York and New Jersey, following infection by herpes simplex virus, presumably from infected practitioners. The City responded by requiring signed parental consent before oral suction, with parents being warned of the dangers of the practice. This essay argues that informed consent is not an (...) appropriate response to this problem. An outright ban would a better response to a practice that is dangerous to children, but might prove unconstitutional under New York State law. (shrink)

Hip fractures are common and serious injuries in the geriatric population. Obtaining informed consent for surgery in geriatric patients can be difficult due to the high prevalence of comorbid cognitive impairment. Given that virtually all patients with hip fractures eventually undergo surgery, and given that delays in surgery are associated with increased mortality, we argue that there are select instances in which it may be ethically permissible, and indeed clinically preferable, to initiate surgical treatment in cognitively impaired patients under (...) the doctrine of presumed consent. In this paper, we examine the boundaries of the license granted by presumed consent and use the example of geriatric hip fracture to build an ethical framework for understanding the doctrine of presumed consent. The license to act under presumed consent requires three factors: patient incapacity, clinical urgency and clarity on the correct course of action. All three can apply to geriatric hip fracture. The typical patient frequently lacks capacity. Delays in initiating surgical treatment are associated with markedly increased mortality rates. Last, there appears to be consensus that surgery is the preferred treatment. Nonetheless, because there is a window of safe delay during which treating physicians can stabilize the patient, address reversible causes of cognitive impairment and identify surrogate decision makers, presumed consent should be invoked only as a method of last resort. A medical situation need not be characterized by risk of imminent and certain death for presumed consent to be relevant. Rather, there are two distinct windows that must be considered: the time interval in which action may be delayed without danger, and the time interval needed to obtain a better form of consent. Presumed consent is appropriate only when the latter exceeds the former. (shrink)

This article explores the meaning and moral significance of presumed consent with particular reference to an opt-out policy for postmortem organ donation. It does so under two general categories: circumstances where we believe consent to have been given and those where we have no reason to believe that it has either been given or been refused. In the context of an opt-out policy, the first category would relate to the idea of tacit consent. It is argued (...) both that substituting the term ‘presumed consent’ would be misleading and that it is unlikely that the conditions for tacit consent would be met in practice. Regarding the second category, where the claim would be one regarding counterfactual consent, two main points are made: that claims about consent are unwarranted, and also that they are unnecessary to moral argument, given that the moral work is done by reasons other than any supposedly provided by a presumption of consent. (shrink)

United Kingdom Transplant reported that, during 2007—2008, a total of 7655 people were awaiting a transplant; however, only 3235 organs were available via the current `opt in' approach. To address this shortfall, new UK legislation sought to increase the number of organs available for donation. The Chief Medical Officer for England and Wales supports the adoption of `presumed consent' legislation, that is, an `opt out' approach, as used in much of Europe. Little research, however, has explored the impact (...) on bereaved relatives, nurses and medical staff of introducing presumed consent legislation. Adopting a phenomenological approach, this study used responses to an initial questionnaire combined with selected interviews with health care professionals to capture their direct experience of presumed consent legislation in three European countries: Portugal, Norway and Belgium. (shrink)

Organ donation after cessation of circulation and respiration, both controlled and uncontrolled, has been proposed by the Institute of Medicine as a way to increase opportunities for organ procurement. Despite claims to the contrary, both forms of controlled and uncontrolled donation after cardiac death raise significant ethical and legal issues. Identified causes for concern include absence of agreement on criteria for the declaration of death, nonexistence of universal guidelines for duration before stopping resuscitation efforts and techniques, and assumption of (...) class='Hi'>presumed intent to donate for the purpose of initiating temporary organ-preservation interventions when no expressed consent to donate is present. From a legal point of view, not having scientifically valid criteria of cessation of circulation and respiration for declaring death could lead to a conclusion that organ procurement itself is the proximate cause of death. Although the revised Uniform Anatomical Gift Act of 2006 provides broad immunity to those involved in organ-procurement activities, courts have yet to provide an opinion on whether persons can be held liable for injuries arising from the determination of death itself. Preserving organs in uncontrolled donation after cardiac death requires the administration of life-support systems such as extracorporeal membrane oxygenation. These life-support systems can lead to return of signs of life that, in turn, have to be deliberately suppressed by the administration of pharmacological agents. Finally, allowing temporary organ-preservation interventions without expressed consent is inherently a violation of the principle of respect for a person's autonomy. Proponents of organ donation from uncontrolled donation after cardiac death, on the other hand, claim that these nonconsensual interventions enhance respect for autonomy by allowing people, through surrogate decision making, to execute their right to donate organs. However, the lack of transparency and the absence of protection of individual autonomy, for the sake of maximizing procurement opportunities, have placed the current organ-donation system of opting-in in great jeopardy. Equally as important, current policies enabling and enhancing organ procurement practices, pose challenges to the constitutional rights of individuals in a pluralistic society as these policies are founded on flawed medical standards for declaring death. (shrink)

The present state of the law is unsatisfactory. The exact effect on the marriage of the parties has not been decided although in English law if artificial insemination by donor (AID) takes place without consent that would appear to be a ground for divorce since 1969. The law regards a child born as a result of AID as illegitimate and draws no distinction between the case where the husband consents and where he does not. Theoretically, an offence is committed (...) if the birth entry is falsified, presumably in cases where the husband consents. The AID child, like any other illegitimate child, has rights against the natural parents, but he is in a worse position than most illegitimate children, in that he may not have any information about his father. It is now possible to freeze sperm and so preserve it over longer periods. All the problems associated with AID are present also when sperm is preserved in banks, but if the law is in an unsatisfactory state in relation to AID this is even more true in relation to sperm banks. The main criticism of the Feversham Report (1960) could be that it recommended, broadly speaking, the `status quo' but scientific progress has now overtaken and left the Feversham findings well behind. What, therefore, is required is a full consideration of the subject of AID and, on the basis of that, some statutory code regulating all its aspects. (shrink)

In this paper I will discuss two aspects of ignorance of the law: ignorance of illegality (including mistaking the law) and ignorance of the penalty; and I will look at the implications for natives, for tourists and for immigrants. I will argue that Carlos Nino's consensual theory of punishment need to rely on two premises in order to justify that (claiming) ignorance of the law is no excuse. The first premise explains why individuals are presumed to 'know' current (...) class='Hi'>laws. The second premise explains why individuals are presumed to 'know' new legislation. (shrink)

Ben Saunders claims that actual consent is not necessary for organ donation due to ‘normative consent’, a concept he borrows from David Estlund. Combining normative consent with Peter Singer's ‘greater moral evil principle’, Saunders argues that it is immoral for an individual to refuse consent to donate his or her organs. If a presumed consent policy were thus adopted, it would be morally legitimate to remove organs from individuals whose wishes concerning donation are not (...) known. This paper disputes Saunders' arguments. First, if death caused by the absence of organ transplant is the operational premise, then, there is nothing of comparable moral precedence under which a person is not obligated to donate. Saunders' use of Singer's principle produces a duty to donate in almost all circumstances. However, this premise is based on a flawed interpretation of cause and effect between organ availability and death. Second, given growing moral and scientific agreement that the organ donors in heart-beating and non-heart-beating procurement protocols are not dead when their organs are surgically removed, it is not at all clear that people have a duty to consent to their lives being taken for their organs. Third, Saunders' claim that there can be good reasons for refusing consent clashes with his claim that there is a moral obligation for everyone to donate their organs. Saunders' argument is more consistent with a conclusion of ‘mandatory consent’. Finally, it is argued that Saunders' policy, if put into place, would be totalitarian in scope and would therefore be inconsistent with the freedom required for a democratic society. (shrink)

Donating, distributing and ultimately transplantingorgans each has distinct ethical problems. In thispaper I suggest that the first ethical question is notwhat should be done but what is a fair way in whicheach of these problems can be addressed. Experts –whether these be transplant surgeons, policy analysts,political scientists or ethicists – can help guidebut cannot by themselves make such decisions. Inmaking these decisions the difference betweenidentified and non-identified lives is crucial. Isuggest that an approach in which reason is temperedby compassion (``compassionate (...) rationality'') whendealing with identified lives and in whichcompassion is controlled by reason (``rationalcompassion'') in dealing with unidentified lives mustserve us well. Ultimately decisions of this sort areprone to sturdy democratic process which is possibleonly when the preconditions of person, economic andeducational democracy are met. (shrink)

In his précis, James Stacey Taylor sets out his full-blooded Epicureanism, which concludes that “death is not a harm to the person who dies and that persons can neither be harmed nor wronged by events that occur after their deaths.”1 He then considers various topics in bioethics in the light of his Epicureanism, one of which I consider here: presumed consent in the procurement of organs for transplantation. Although I do not accept Taylor's Epicureanism and although his examination (...) of presumed consent is flawed in various ways, I think we can learn something important from him.Taylor couches the problem in terms of what we are supposed to presume about people's consent or dissent and he thinks that the USA and UK have a system of ‘presumed refusal’ “whereby it is presumed that a person would refuse to have her transplantable organs removed from her postmortem unless she had explicitly indicated otherwise” . Taylor makes a common mistake. The USA and UK have never had such a presumption. In these countries, people who explicitly refuse may not have their organs taken, whereas people who do not explicitly consent may have their organs taken if, roughly speaking, their families consent. Thus non-consenters are not presumed to be refusers.Leaving aside the mistake about the status quo, …. (shrink)

The demand for donor organs for transplantation in the UK far exceeds the supply. A number of improvements in the infrastructure surrounding organ donation, as well as attempts to increase public awareness, have been made over recent years, but there remains a massive shortfall. It has been proposed that a system of presumed consent for organ donation, in which all individuals are considered to be potential organ donors after death unless they have previously opted out, may serve to (...) increase the supply of organs. Recently the Welsh Assembly passed a Bill introducing presumed consent by 2015, but the debates regarding legislative changes are still on-going in England, Scotland and Northern Ireland. The ethical implications of presumed consent legislation are at the centre of these discussions. When examined by a principlist approach, presumed consent may be deemed to be an ethically beneficial measure to increase organ donation rates. It is argued here that the system of presumed consent may actually be more respectful of the principle of autonomy than a system of explicit consent, on the basis that it goes against the wishes of the fewest number of people, and it has clear benefits in terms of beneficence and justice whilst also being compatible with the principle of nonmaleficence. Although there is some debate about the precise impact that presumed consent would have on donation rates, there is evidence to suggest that it would result in an increase in the donor organ supply, when combined with improvements in education and infrastructure. (shrink)

One of the most controversial aspects in uncontrolled donation of organs after circulatory death is the initiation of preservation measures before death. I argue that in so-called opting-out systems only under very stringent conditions we might presume consent to the instauration of those measures. Given its current legal framework, I claim that this is not the case of Spain, a well-known country in which consent is presumed—albeit only formally—and where uDCD is currently practiced.

Since we have learned that human organs can be used to treat severe health problems, only donation has been considered for organ procurement. Among the other possibilities that can be used after a person’s death, purchase or systematic removal have been a priori rejected. However, we will show that the appeal to individual altruism have resulted in some of the aporias of the present situation. Subsequently, we will consider how systematic organ removal from deceased persons can be made acceptable in (...) liberal and democratic societies. Finally, we will suggest that individual choices with regard to systematic organ removal could well be registered in a way that allows proper implementation of present French legislation. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Kant and the Divine: From Contemplation to Moral Law by Christopher J. InsoleChris L. FirestoneChristopher J. Insole. Kant and the Divine: From Contemplation to Moral Law. Oxford: Oxford University Press, 2020. Pp. v + 409. Hardback, $110.00.The extent to which the philosophy of Immanuel Kant converges with or diverges from Christian thought has been a hotly debated topic in recent years. Central to that debate has been the (...) resurgence of interest in Kant's classic Religion within the Boundaries of Mere Reason (henceforth, Religion). The most insightful interpretations and applications of Religion, it seems, have utilized resources from a broad range of Kant's writings, emphasizing his philosophy considered as an integrated whole. Christopher Insole's recent monograph—Kant and the Divine: From Contemplation to Moral Law—attempts to redirect this debate with an argument spanning Kant's precritical and critical periods in performing a deep dive on the topic of freedom. On the face of it, the argument is not purely theological or even religious. It revolves, instead, around a metaphysical analysis of freedom, both as exemplified in Kant's writings and relative to his historical predecessors.Key to Insole's proposal is that Kant's critical notion of freedom evolves into something very different than that of his predecessors (on which his early writings depend) and, in its development, decisively "ruptures" with the Christian tradition. Human freedom, on Insole's analysis of Kant, must be "end-setting" and not constrained or directed by any type of external compulsion. This suggests that God cannot be understood to influence freedom causally, or at least not without human conscious and free consent. Numerous writers have thought they spied Christian connections in Kant's notion of freedom, such as the need for divine forgiveness, and even grace, to avoid the absurdum practicum. Insole resists all such attempts as being foreign to the novelty of the mature Kant's reflections on freedom. No external force can be brought to bear as a determining causal influence on human freedom, presumably because an end set before us from outside undermines our ability to set an end for ourselves. God is at best the "all-knowing distributor of happiness" (321) that makes end-setting and the kingdom of ends worthwhile moral pursuits. Insole's express intention is to "show the significance of Kant's denial that God can be our final cause" and that "his philosophical religiosity, understood on its own terms, and as expressed across his whole oeuvre" shows that "Kant cannot easily be called a Christian thinker" at all (2–4).Extricating Kant from Christianity proves to be a monumental task. Insole uses eighteen chapters and more than four hundred pages to make his case. The argument distinguishes itself from other such attempts in its rigorous analytic approach to unpacking the metaphysical underpinnings of issues supposedly at the root of Kant's philosophical theology. The book presents a cumulative case argument for Kant's supposed break with "the Christian theological tradition as he would have received it" (13). Much rests on whether or not this argument is cogent. Kant, according to Insole, is something akin to a theological Platonist and moral Stoic, who attempts to establish a unique form of "philosophical religiosity" (3 and 156). This makes Kant similar to the likes of Augustine and Ambrose, but different in terms of his theological aspirations. Insole casts Kant not as a pure philosopher seeking to understand philosophy relative to the Christian tradition, but rather as a philosophical [End Page 164] theologian bent on showing human freedom, free end-setting, and an ethical community of end-setters to be the exclusive means for attaining the highest good. Although this may sound Pelagian, Insole insists it is not, because "the Pelagian could still regard God as our final cause and efficient cause" (299). In other words, in Insole's interpretation, Kant is a strict philosophical humanist or what theologians might term a hyper-Pelagian.The difficult details of Insole's arguments are important to consider but not easily dealt with in the space provided here. Early in the book, Insole takes his reader on a metaphysical tour of "Divine Ideas" and "God... (shrink)

Organ procurement policy from the recently deceased recasts families into gatekeepers of a scarce medical resource. To the frustration of organ procurement teams, families do not always authorize organ donation. As a result, efforts to increase the number of organs available for transplantation often seek to limit the authority of families to refuse organ retrieval. For example, in some locales if a deceased family member has satisfied the legal conditions for first-person prior assent, a much looser and easier standard to (...) satisfy than informed consent, organ retrieval may proceed despite the family’s objections. Some countries have replaced voluntary consent to organ donation with forms of organ conscription. Often referred to under the misnomer “presumed consent,” such policies legalize the harvesting of organs at death, unless individuals exercise official options to opt out. As this article explores, however, there are good grounds for affirming the authority of the family to consent to or to deny organ donation on behalf of recently deceased family members, as well as to reject first-person assent and “presumed consent” policies of organ procurement. Insofar as individuals have failed clearly and competently to provide informed consent to organ donation, moral authorization for the use of the person and his body ought to be grounded on the foundational authority of the family, rather than the state’s supposed interests in obtaining organs for transplantation. (shrink)

Organ donation has gained much attention as the need for transplant exceeds the supply of organs. Various proposals have been put forward to address the organ shortage challenge, ranging from offering incentives to donors, addressing family refusals to donations and instituting presumed consent laws. Presumed consent as the favoured approach has not been universally effective in increasing actual transplants despite its appeal. Few considerations have been given to the broader ethical climate influencing the organ donation (...) debate. This paper examines the ethical climate surrounding organ donation and identifies the challenges existing within such environments. It explores care ethics and its application to the donation system, demonstrating how it can influence the organ donation phases. The conclusion drawn from the analysis is that a caring ethical climate in the pre, during and post-transplant system respects donor autonomy, addresses family reluctance to agree to donation, facilitates the needs of the donee and creates an environment that promotes non-maleficence for all stakeholders. (shrink)

In the United Kingdom, the debate about how best to meet the shortfall of organs for transplantation has persisted on and off for many years. It is often presumed that the answer is simply to alter the law to a system of presumed consent. Acting perhaps on that presumption in his annual report launched in July, the Chief Medical Officer, Sir Liam Donaldson, advocated a system of organ donation based on presumed consent, the so-called “opt-out” (...) system.1 He is calling for a change in the law in England and Wales whereby consent to organ donation is presumed, making a person’s organs automatically available for transplantation after death, unless they registered objections to this while alive. Subsequently, the British Medical Association lent its support to the introduction of such a system.2 The BMA contends that “the practice of presumed consent legislation has had a significant effect on the number of cadaveric donors per million population.”2It is often taken for granted that there must be a correlation between the enactment of legislation on presumed consent and an increase in organ donation and procurement. However, the correlation is not as straightforward as it might seem. It may be that other practical measures to encourage organ donation could be implemented without changing the Human Tissue Act 2004, an Act which has been in force for barely a year.An analysis by Abadie and Gay demonstrated that “presumed consent legislation has a positive and sizeable effect on organ donation rates”,3 but they themselves admitted that the correlation between rates of donation and presumed consent legislation is “not completely unequivocal”.3 It is true that among the most successful cases in procurement rates are countries with presumed consent legislation . However, since some of the …. (shrink)

Background Posthumous organ procurement is hindered by the consenting process. Several consenting systems have been proposed. There is limited information on public relative attitudes towards various consenting systems, especially in Middle Eastern/Islamic countries. Methods We surveyed 698 Saudi Adults attending outpatient clinics at a tertiary care hospital. Preference and perception of norm regarding consenting options for posthumous organ donation were explored. Participants ranked (1, most agreeable) the following, randomly-presented, options from 1 to 11: no-organ-donation, presumed consent, informed (...) class='Hi'>consent by donor-only, informed consent by donor-or-surrogate, and mandatory choice; the last three options ± medical or financial incentive. Results Mean(SD) age was 32(9) year, 27% were males, 50% were patients’ companions, 60% had ≥ college education, and 20% and 32%, respectively, knew an organ donor or recipient. Mandated choice was among the top three choices for preference of 54% of respondents, with an overall median[25%,75%] ranking score of 3[2,6], and was preferred over donor-or-surrogate informed consent (4[2,7], p vs. 11[6,11], respectively, p = 0.002). Compared to females, males more perceived donor-or-surrogate informed consent as the norm (3[1,6] vs. 5[3,7], p vs. 8[4,9], p vs. 5[2,7], p Conclusions We conclude that: 1) most respondents were in favor of posthumous organ donation, 2) mandated choice system was the most preferred and presumed consent system was the least preferred, 3) there was no difference between preference and perception of norm in consenting systems ranking, and 4) financial (especially in females) and medical (especially in males) incentives reduced preference. (shrink)

In a community that takes rights seriously, consent features pervasively in both moral and legal discourse as a justifying reason: stated simply, where there is consent, there can be no complaint. However, without a clear appreciation of the nature of a consent-based justification, its integrity, both in principle and in practice, is liable to be compromised. This book examines the role of consent as a procedural justification, discussing the prerequisites for an adequate consent -- in (...) particular, that an agent with the relevant capacity has made an unforced and informed choice, that the consent has been clearly signalled, and that the scope of the authorisation covers the act in question. It goes on to highlight both the Fallacy of Necessity (where there is no consent, there must be a wrong) and the Fallacy of Sufficiency (where there is consent, there cannot be a wrong). Finally, the extent to which the authority of law itself rests on consent is considered. If the familiarity of consent-based justification engenders confusion and contempt, the analysis in this book acts as a corrective, identifying a range of abusive or misguided practices that variously under-value or over-value consent, that fictionalise it or that are fixated by it, and that treat it too casually or too cautiously. In short, the analysis in Consent in the Law points the way towards recognising an important procedural justification for precisely what it is as well as giving it a more coherent application. (shrink)