Premium
Can Consent be Presumed?
Author(s) -
DEN HARTOGH GOVERT
Publication year - 2011
Publication title -
journal of applied philosophy
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.339
H-Index - 30
eISSN - 1468-5930
pISSN - 0264-3758
DOI - 10.1111/j.1468-5930.2011.00524.x
Subject(s) - presumption , interpretation (philosophy) , informed consent , autonomy , organ procurement , action (physics) , organ donation , authorization , law , mental state , psychology , epistemology , medicine , political science , philosophy , transplantation , surgery , psychiatry , computer security , alternative medicine , computer science , linguistics , physics , pathology , quantum mechanics
Opt‐out systems of postmortal organ procurement are often referred to as ‘presumed consent’ systems. A presumption directs us, in a case in which no compelling evidence is available to hold that P, nevertheless to proceed as if P were true, unless there is sufficient evidence that it is false. It is recommended to presume consent in this case, because, in the absence of registered objections of the deceased, it is held to be more probable that she consented than that she did not. Whether this suggestion makes sense, however, turns out to depend on the proper interpretation of the concept of ‘consent’. On a mental state conception of consent we are allowed to presume it if we have reason to suppose the deceased to have been in favour of donation. However, we should rather understand consent to be a public action of authorisation. On that view consent cannot be presumed, and the opt‐out systems as we presently know them on the European continent and elsewhere do not satisfy the requirement that the deceased should have consented to the removal of his organs.