Explicit Consent

Explicit Consent

Presumed consent is an opt-out rule. The obvious alternative is to adopt some kind of opt-in rule, the most common being what is called an explicit (or informed) consent rule, meaning that people have to take some concrete steps to state that they want to be donors. Typically this now means joining an online registry of willing donors. It is clear that many people who say they are willing to donate organs nevertheless fail to take the necessary steps. The gap matters when interpreting nonregistration as a preference not to donate.

For example, according to a Gallup poll cited by Thaler and Sunstein, more than 90 percent of Americans said they supported or strongly supported the donation of organs for transplant, but only 55 percent said they had registered as donors.13 True, it is possible that people do not quite tell the truth in surveys, but it is also possible that people have limited attention, suffer from inertia, and procrastinate, and that the concrete steps necessary to register as an organ donor are deterring would-be donors from doing so. If so, an opt-in approach may not reflect how Potential Donors would answer if they focused on the question, were properly informed, had appropriate trust that being a willing donor would not adversely affect their treatment in a hospital, and did not procrastinate. If an opt-in approach is “unadorned”—if it is not supplemented in some way—then it really is not very good from the standpoint of capturing the true preferences of Potential Donors. Perhaps they need a nudge.