Explicit or Presumed Consent and Organ Donation Post-Mortem: Does It Matter?

Abstract

In the last 25 years almost every West European country has enacted a transplantation law. During the preparation of these laws an important issue was whether to base the transplantation law on explicit or presumed consent regarding organ donation post-mortem. A common view of supporters of the presumed consent system is that it will result in more organ donors than the rule of explicit consent. In this article the difference between the different systems is further explored. For that purpose, the systems for post mortem donation in 10 West European countries will be discussed. Focus will be on the legal role of relatives within the consent process and finally on the role of relatives in practice. It will be argued that the difference between the two types of systems is less important than it seems to be at first sight.