In the United States, a variation of presumed consent has been applied in very limited circumstances—corneal removal statutes. In certain areas of Europe, presumed consent is the law. Even there, however, families are often asked for permission as a matter of custom and, as a result, presumed consent is effectively negated. Some have argued for an expansion of presumed consent in the United States such that it would be presumed that a decedent wanted to be an organ donor, and persons who do not wish to donate their organs and tissue must sign non-donor cards. Pure presumed consent laws allow the removal of organs regardless of the wishes of the decedent’s family, unless the decedent has opted out by, for example, signing a “non-donor” card (e.g. France). Modified presumed consent laws allow the removal of organs, unless the decedent has opted out or the family objects. In these countries, though, it is generally not required for the physician to advise the family of their right to refuse, which effectively erects somewhat of a barrier to the refusal of donation (e.g. Sweden).

Conceivably a system could be devised where organ donation would be compulsory. Under such a system, upon death, organs would belong to the state and could be harvested, regardless of the wishes of the decedent or the decedent’s family. It seems highly unlikely that such a provision would withstand a Constitutional challenge and courts would likely find a sufficient property right in a decedent’s organs such that compulsory donation would run afoul of the Takings Clause. Constitutional challenge aside, such a system would be morally offensive to the majority of Americans.

Current Federal law prohibits the sale of organs for transplantation (NOTA), but it has been argued that allowing the sale of organs might increase the supply. We do, after all, allow for the sale of blood products, a practice that coexists with the donation of blood. Allowing the sale of organs raises many ethical issues, not the least of which would be the potential exploitation of the poor who would have an incentive to sell their organs; organs which only the rich, or insured, could afford to buy. The Iowa study, cited earlier, found very little support for the idea of compensating organ donors. The important concern has also been raised that once a market for organs is allowed, the voluntary donation of organs will cease.

The ethical issues raised by allowing a market approach to transplantable organs would certainly be less controversial than the ethical issues raised by proposals to allow the “donation” of organs from anencephalics and/or persons in persistent vegetative states. Currently, this source of organs is unavailable because, ethical issues aside, such persons are not dead under current legal standards and are also obviously unable to give consent.