Currently, in New York, a person can affirmatively choose to be an organ donor. This is typically done when applying for a New York State driver license or by checking and signing the box on the reverse side of a driver license.New York State Assemblyman Richard Brodsky has introduced legislation that would reverse the enrollment process. Under the proposed legislation (A09865), an applicant for a driver license is automatically enrolled as an organ donor unless he or she opts out of the program. Furthermore, if an applicant has not opted out of the organ donation program, his or her family members or health care proxy cannot override the presumed consent without showing that the “consent” was later revoked.
The sponsor’s memo states:
According to the New York State Organ Donor Network, New York State currently has the lowest donor Designation Rate (DDR) in the United States. In total, only 11% of eligible donors are currently enrolled in The New York State Organ and Tissue Registry.
This number starkly contrasts to the national average of 43%. In some states, such as Utah and Iowa, the DDR ranges between 65-70%. This bill will create a new model for organ and tissue donation that is aimed at significantly increasing that percentage while taking into consideration all of the individual rights of persons to decline enrollment into the program.
The bill does not change Public Health Law 4301(5)(c) which states that an organ donee may not accept the gift if the donee has reason to believe that an anatomical gift is contrary to the decedent’s religious or moral beliefs. But this is small comfort to those with moral or religious objections to organ donation. By not opting out, the decedent is presumed to have consented, and “reason to believe” that the gift is contrary to the decedent’s religious or moral beliefs seems to be a pretty slippery concept.
The proposed bill also does not change the manner in which an anatomical gift can be revoked. So if, for example, one did not opt out of organ donation on the driver license application form, the presumed consent can be revoked by a “signed card or document found on his person or in his effects.” A revocation can be added to a health care proxy, but not everyone signs a health care proxy, even though they should.
The New York Times Room for Debate blog had several comments for and against the legislation. Elaine Berg, president and chief executive officer of the New York Organ Donor Network, was in favor of the bill (no surprise given her job description), yet wrote:
Importantly though, in order to be considered, it is imperative that any system of presumed consent have robust safeguards to protect individual rights. There must be guarantees that every citizen is well-informed regarding their right to opt out, and the procedure to do so would have to be simple, accessible and barrier-free.
Multilingual education in communities lacking access to computers or English media would have to take place. There would need to be multiple types of outlets for opting out, including at social service agencies, schools, D.M.V.’s, places of worship and online. We would have to pay special attention to communities who may have broad concerns about donation.
Religious organizations will no doubt strenuously lobby against the bill.