The Hippocratic Society Switzerland is campaigning for a trustworthy transplantation medicine. Transplantation medicine can only be trustworthy provided that organ donation remains unchanged a donation. The meaning of the term “donation” implies voluntariness based on the personal decision of each donor.
The willingness to donate organs can either be recorded by an organ donor card, or, on the other hand, the presumed will to do so is known to the closest relatives and they consent to organ donation at the end of life. The voluntary nature is guaranteed by the principle of explicit consent which is currently in use.
On 15 May 2022, the Swiss population will be voting on a fundamental revision of the Transplantation Act introducing the principle of “presumed consent”. By voting “yes”, organs could be removed from all persons at the end of life, unless they have expressly objected to organ donation during their lifetime or unless their relatives won’t object at the time of death. Actually, the principle of presumed consent will introduce an obligation to donate organs.
A paradigm shift of this kind, which would mean the state refraining from protecting physical integrity in every case, must be stopped with a “no” vote.
The vote is not about a pro or con on organ donation, but about deciding whether it should be presumed that people not explicitly having said no to organ donation should be allowed to have their organs removed.
Indisputably, an increase in the number of donors is desirable. However, presumed consent is an unacceptable means as it violates principles of medical ethics and constitutional law.
After all, the end doesn’t justify every means!
Silence can’t be taken as implying consent
Every medical intervention requires good information from the attending physician, conscious, self-determined and independent consent and a documented declaration of consent (informed consent). However, it is unacceptable that this should no longer apply to organ donation, a far-reaching decision at the end of life. The assumption of implicit consent is insufficient. Rather, it requires a prior conscious decision embedded in a trustworthy doctor-patient relationship. Organ donation is ethically acceptable if the person concerned has actively given his or her well-considered consent during his or her lifetime.
Human right to physical integrity must apply unconditionally
The human right to physical integrity must not be allowed to apply only when it is demanded!
Article 10 (2) of the Federal Constitution guarantees every person the right to physical and mental integrity and to self-determination. This right is particularly valid in highly vulnerable situations such as the process of dying. According to the preamble of the Federal Constitution, “the strength of a people is measured by the well-being of its weakest members”.
The principle of presumed consent, on the other hand, would require the right to bodily integrity to be explicitly demanded. Given the ignorance of many citizens about this new regulation and about the possibility to object, a disproportionately large effort of information would be required in order to ensure that the population was correctly informed. There are concerns that parts of the population, particularly those with limited social, cultural and linguistic access, will be effectively disconnected and more or less “duped” by the new regulation.
Thus, there is a danger that organs could be automatically removed from people unaware of this new situation. However, it remains the task of the state to protect its citizens and guarantee their human rights.
No to pressure on relatives!
If an affected person fails to express an opinion on the question of organ donation during his or her lifetime, the relatives will be asked about the presumed will during the dying process. Newly, they would not be asked about presumed consent, but whether an objection by the possible donor is known. They would be expected to credibly demonstrate that the deceased person would presumably have refused organ donation. The principle of presumed consent thus makes organ donation the rule, which increases the pressure on relatives to agree to donation. Under certain circumstances, they would have to justify themselves, provide explanations and actively oppose the planned removal of organs. As a result, there is a risk that they would no longer decide in accordance with the presumed will of the relative. Thus, a refusal of organ donation could be blamed on the relatives as “unsolidaric conduct”. Organ donation should occur in agreement with all parties involved, combined with the satisfaction of helping a person to live on.
No to the exploitation of the most vulnerable!
It is unrealistic that more than 7 million adult citizens of Switzerland can be informed comprehensively that they must object and enter their names in a register if they do not wish to donate their organs. The principle of presumed consent could lead to people (especially from poorly educated, socially disadvantaged backgrounds) having their organs removed against their will because they were unaware during their lifetime that they should have objected. It is especially these socially weakest people who require be protected by the rule of law.
Does not lead to more donations
It is not true that presumed consent is the reason for a higher donation rate in other countries. According to several studies, the principle of presumed consent didn’t significantly increase the number of donations. But even if this were the case, changing the system would be a violation of the fundamental right to bodily integrity.
Surrender of the state’s obligation to protect
From a constitutional law perspective, the principle of presumed consent means a paradigm shift in the state’s obligation to protect its citizens. Protection of the physical and mental integrity of its citizens is no longer guaranteed. This constitutes an encroachment on fundamental rights secured b constitutional law (Article 10 para. 2). Undermining fundamental rights in this way can undermine confidence in the rule of law.
Approach based on explanation as an alternative worthy of discussion
The National Adivsory Commission on Biomedical Ethics rejects presumed consent. It advocates an approach based on explanation, i.e., citizens are regularly informed and questioned on the subject of organ donation with the aim of motivating them to make a conscious and responsible decision. This would also include the right for people to refuse or not to be able to answer. This approach might improve the social debate on the complex question of organ donation. •
For further study:
Dres. med. Ursula und Walter Knirsch “Extended consent regulation versus extended objection regulation – what is it actually about” In: Current Concerns Nr. 28/29 of 21 December 2021
Fontana, Katharina. “I schänke dr mis Härz” (I give you my heart), In: Neue Zürcher Zeitung of 2 April 2022
Review article with representatives of the referendum committee. In: Aargauer Zeitung of 1 April 2022
Statement Council of the Swiss Protestant Reformed Churches: https://refbl.ch/refbl-wAssets/docs/Aktuelles/news/2022/EKS_10-Fragen-10-Antworten_Organspende.pdf
Homepage referendum committee: https://organspende-nur-mit-zustimmung.ch/
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