Barack Obama’s nominee to head the Office of Information and Regulatory Affairs (OIRA), Cass Sunstein, has advocated that laws be changed so that deceased patients’ organs may be harvested for transplant without prior consent from the patient or family.
Sunstein and co-author Richard H. Thaler outlined the policy in their 2008 book, Nudge: Improving Decisions About Health, Wealth, and Happiness. Many organs that could be used in transplants are lost because patients fail to give their consent before dying, Sunstein and Thaler note, and family members often refuse to donate their loved one’s organs.
This “explicit consent” should be turned into a “presumed consent,” write Sunstein and Thaler, where laws would assume that, unless people explicitly choose not to, they want to donate their organs to science for transplant or other medical uses.
“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.
Sunstein and Thaler go on to write that the political battle to reverse laws from “explicit consent” to “presumed consent” could be more easily accomplished through a system of “mandated choice.”
“Another [problem] is that it is a hard sell politically,” they write. “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.”
As Obama’s Regulation Czar, Sunstein will play a major role in defining the government’s role in controlling medical care. In 2003 he wrote a paper for the AEI-Brookings Joint Center for Regulatory Studies arguing that human life varies in value.
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