France’s New Opt-Out Organ Donation System Is a Good Idea

Photo: Pitchal Frederic/Sygma via Getty Images

On January 1, new legislation in France took effect that changes the country’s organ donation approach to an “opt-out” system, meaning that, unless French citizens explicitly state that they do not wish to donate their organs upon their death, it will be assumed that they do. Under this so-called “presumed consent” law, organ donation becomes the default.

It’s a move that, as prominent behavioral economists like Dan Ariely and Richard Thaler have long argued, could help increase the rates of organ donations, perhaps in part by simply streamlining the process. In France, for instance, the new law is a reversal, in that policy previously stated that “unless the person who had died had previously expressed a clear wish for or against donation, doctors were required to consult relatives who, in almost a third of cases, refused,” reports The Guardian. Those who do wish to opt out of organ donation can fill out a form online, although, according to The Guardian, just 150,000 people — out of France’s approximately 66 million — have so far signed up on that “refusal register.”

It is, of course, way too early to draw any definitive conclusions from that figure, but, so far, some are taking it as early evidence to support those claims by Ariely, Thaler, and others concerning opt-out systems. “Consider the difference in consent rates between two similar countries, Austria and Germany,” Thaler wrote for the Times in 2009. “In Germany, which uses an opt-in system, only 12 percent give their consent; in Austria, which uses opt-out, nearly everyone (99 percent) does.” Ariely points to similar data, and in a 2008 blog post offered this by way of explanation:

So, what could explain these differences? It turns out that it is the design of the form at the DMV. In countries where the form is set as “opt-in” (check this box if you want to participate in the organ donation program) people do not check the box and as a consequence they do not become a part of the program. In countries where the form is set as “opt-out” (check this box if you don’t want to participate in the organ donation program) people also do not check the box and are automatically enrolled in the program. In both cases large proportions of people simply adopt the default option.

People tend to resort to the default option, and people are often lazy. True enough. But there is (obviously) more going on here than that. As writer Casey Leins pointed out last year in U.S. News & World Report, the current stats on organ donation deserve a careful look. It’s true that the rate of organ donation in the U.S., at 26.6 per 1 million people, is considerably less than the rate in, for example, Spain, which at 35.7 per 1 million people is what Leins calls “a presumed consent country considered the world’s leader when it comes to organ donations.” But when you look at other presumed consent countries, the numbers look similar to ours. Portugal’s is 27.3, for example, and Belgium’s is barely above ours at 26.9. (All of these figures, by the way, are taken from 2014 statistics from the Council of Europe.)

People are complicated, to say the least. But here’s something intriguing to consider: Perhaps opt-out policies are useful in part because they change what it means to be an organ donor. In a 2012 study by a team of social psychologists from Cornell University and Stanford University, experimenters asked their participants to think about exactly that — what it means to be an organ donor. When considered in the context of opt-in policies, people tended to say that organ donation qualified as “exceptional” altruism — “more like leaving 50 percent of one’s estate to charity than like leaving 5 percent,” the authors write, or “more like taking part in a political campaign than like voting for mayor.” In contrast, when considered in an opt-out context, a refusal to donate one’s organs is what became exceptional, “more like skipping your child’s graduation than like skipping your child’s baseball game.” In light of an opt-out policy, a decision not to donate becomes a bigger deal.

To restate the obvious: Context matters, and so does culture. “When citizens are presumed by the default option to be organ donors, organ donation is seen as something that one does unless some exceptional factor makes an individual particularly reluctant to participate,” the study authors write of their findings. “In contrast, when citizens are presumed by the default option not to be organ donors, organ donation is seen as something noteworthy and elective, and not something one simply does.”

In the U.S., a 2012 survey on attitudes toward organ donation found that about half of the 3,200 Americans surveyed by the U.S. Department of Health and Human Services were in favor of an opt-out system. No state has adopted such a policy, though in several — including New York — lawmakers have attempted to push such legislation through. Opt-out systems are surely not a cure-all to the problem of organ donation shortages, “[b]ut it will help a bit,” as bioethicist Arthur Caplan told Leins. “It just makes it emotionally and psychologically easier to approach families.”

France’s New Opt-Out Organ Donation System Is a Good Idea