How a Mandated Choice System Would Work
A mandated choice system would require all people with the capacity to consent to make an informed decision about what they would like to happen to their organs in the event of their death. Organ donation consent would either be integrated into a pre-existing administrative procedure (such as driver registration or registering for a social security number), or would be a stand-alone requirement for citizens. In our view, citizens should also be required, with appropriate frequency, to reconsider their status as a potential organ donor. That is to say, citizens should be required to revisit their organ donation preferences at regular intervals throughout their lives, as their donor preferences might change with time. Health authorities, furthermore, should fund extensive public education programs so that people can make a truly informed decision about becoming an organ donor.
To be clear, a mandated choice is different from a nudged choice. ‘Nudging’ involves attempts to indirectly or subconsciously influence the kinds of options that people choose in a decision situation. We are not concerned with this. Rather, we are concerned with requiring that people make a choice, whatever their decision might eventually be. We would advocate public education about organ donation, but this is different from attempts to indirectly or subconsciously influence the behavior of social agents (for a helpful discussion of the ethics of nudging, see Schmidt and Engelen 2020).
It is necessary to have a practical means of allowing people to register and also revisit their decision to donate on a sufficiently regular basis. With this in mind—and with a focus on the Australian context—we propose that the organ donor registry be integrated into the Australian federal voting system. On our proposed model, all people would register a decision on whether or not they wish to be an organ donor when they register to vote after turning 18. The Australian Electoral Commission Roll would thus include data on voter preferences vis-a-vis organ donation. This would replace the Australian Organ Donor Register (the current register for vital organ donation in Australia). We also propose that one’s decision to donate should be revisited each time an individual votes, so that any changes in their decision be recorded on a regular basis. This could occur roughly every 3 years during an Australian federal election. Such a system would not impose any undue or additional burdens on citizens, but would still allow for a regular reconsideration of one’s decision about being a donor, and would give a relatively current picture of one’s preferences with respect to organ donation.
For this system to be effective, there would need to be a consequence for those who abstain from registering their decision to donate. Without this, there is the risk that some may ignore or avoid answering the question, thus undermining the concept behind mandated choice. We propose that there be a small financial penalty for people who do not respond to the question of organ donation status—proportionate to the penalty for failing to vote during a federal, state, or council election in Australia. Those who receive a penalty notice should have the opportunity to overturn the fine if they subsequently register their decision to donate through an online portal.
Someone might object that Australia has already trialed a mandated choice system, with limited success. Indeed, the Australian state of New South Wales (NSW) for several years had a driver registration procedure that asked registrants about their organ donation preferences. This system was discontinued in 2012 due to concerns that it was actually impeding consent to organ donation. Over a quarter of registrants said ‘no’ to donation when registering or renewing their driver’s license (ABC 2012). In response, we would note that the problem with the New South Wales system was not so much that people were asked about organ donation, but rather that members of the public did not know enough about the organ donation process. As one organ donation advocate noted at the time, “they’re saying no in an uneducated and uninformed way” (ABC 2012). It is important to bear in mind that the NSW mandated choice system may very well have led to more organ donation than the situation that NSW and other states currently find themselves in, where only a third of people have registered their intention to donate on the Australian Organ Donor Registry (AODR) (Moloney et al. 2022).
For a system of mandated choice to be both ethical and effective, it must be preceded by and coupled with far-reaching public education campaigns. Without this, there is a risk that organ donation rates may be reduced, much like what was seen in NSW with the driver registration procedure. We believe that improved public education campaigns about organ donation would help to remedy this issue. There is sufficient empirical evidence to suggest that public education assists in increasing organ donation rates. A 2006 American study of 490 high school students from Michigan, for example, found that a web-based intervention educating participants about the process of organ donation and organ transplantation led to a statistically significant increase in knowledge about issues related to organ donation and an increased likelihood of registering as an organ donor (Vinokur et al. 2006). Similarly, a 2010 Turkish study on the influence of an education program on organ donation rates among members of a military unit found that just one educational experience led to an increase of organ donor rates from 45.4% to 84.8% (Yilmaz 2011). We think that our proposed system—universal mandated choice plus extensive public education—will lead to an increase in donation and, in any event, will rely on a more ethical consent process.
Benefits of a Mandated Choice System
Mandated choice would address many of the concerns about informed consent arising from both opt-out systems and quasi-opt-in systems. Individuals would make their own decision as to whether or not they wish to be organ donors. Families would not be allowed to override the decision, nor would the state be able to coerce individuals into donating. A mandated choice system, furthermore, overcomes the problem of a psychological bias against decision-making without unduly interfering with the daily lives of citizens.
A mandated choice system would almost certainly increase the number of donors, as the previously mentioned research showed most Australians believe it is important to be a donor; many just have not registered. It is also worth noting that organ donation rates have steadily increased in jurisdictions such as New Zealand, where a mandated choice policy has been in place for over three decades (Organ Donation New Zealand n.d.). In a mandated choice framework, the decision is still left in the hands of the individual, meaning that the act of becoming a donor is still in itself altruistic. For this system to be a success, there would need to be significant investment in educational programs before people make their decisions, so as not to undermine the ‘informed’ nature of the consent. Yet we believe that the cost of educating the public about Australia’s organ donation system would be a very worthwhile investment, particularly if it led to a significant increase in the number of vital organs available for transplant. Indeed, federal and state and territory governments have not hesitated to invest in organ donation in the past on account of the immense health and social benefits that come from increased donation rates.