assessment must examine those differences. This chapter briefly discusses routine organ removal and then considers presumed consent in depth.
Routine removal presupposes that the state or society has a right of access to the organs of deceased individuals. This right may rest on the state’s or the society’s claimed ownership of or authority over the bodies of deceased individuals, or it may rest on an enforceable duty of individuals and families to provide postmortem organs as needed. The fundamental distinction between policies of routine removal and policies of presumed consent rests on their different interpretations of the relation of the individual and his or her dead body to the state or society. Routine removal is broadly communitarian (Nelson, 1992), whereas presumed consent—like expressed consent—is largely individualistic, even though it may include a role for the family. Policies of routine removal also fall under the broad label of opting out, because they generally allow individuals to opt out under various circumstances. Furthermore, in most countries, organ procurement teams contact the families of decedents, even when the authorizing legislation for routine removal does not mandate consultation with the family (Prottas, 1985).
It is also important to note that broad public understanding and voluntariness are not essential for an effective policy of routine organ removal. Instead, state or societal ownership of or authority over the bodies of deceased individuals (or individuals’ and families’ enforceable social obligations) ground the law and social practices of implementation (Childress, 1997). Hence, the removal does not require anyone’s explicit or implicit consent. However, for various reasons, public understanding and voluntary (although passive) acceptance may still be sought.
In the United States, as in many countries, the state does not claim complete authority over the disposition of the bodies of deceased individuals, and the recovery of solid organs is grounded in the consent of the donors or their families. Some states in the United States do authorize medical examiners to remove the corneas from bodies that come under their authority to conduct an autopsy to determine the cause of death. These laws do not require express consent. Even though they allow opting out, they generally do not impose an obligation on the medical examiner to notify families, even if the next of kin happens to be nearby. In one case in Florida, a family was in a nearby room while a deceased relative’s corneal tissue was being removed without their express consent (Florida v. Powell3).