By Maria Coluccio

Last month, the Russian Constitutional Court published a ruling that upheld the legality of harvesting organs from a cadaver without the family’s permission. The ruling was a response to a lawsuit over the harvesting of a deceased Moscow student’s organs without the family’s consent. Alina Sablina was killed in a car accident in January 2014, and her parents were shocked to discover that several of her organs had been removed by a medical institution without their expressed permission. Her mother filed the lawsuit seeking compensation from the Russian medical institution. The official website of the Constitutional Court reported, “Russian medical institutions have the legal right to harvest organs from the deceased without notifying relatives”. This ruling is in line with the Article 8 of the 1992 federal law on the transplantation of organs and/or tissues of human beings, establishing a presumption of consent for the removal of organs for transplantations. Presumed consent, also known as the ‘opt out system’, means that one’s organs can be used unless the deceased, or their family, registers an objection prior to the death.

There are both advantages and disadvantages to the opt out system for organ donations.
On one hand, presumed consent increases the supply of organs and can arguably make the donation process easier.  These advantages are attempts to solve the critical problem of organ shortages. It also removes the difficult decision the donor’s family face when asked for consent during a painful time.   On the other hand, there are ethical arguments against presumed consent. There are risks of registering one’s objection. An individual may not know that he or she has to object to consent, or if an objection notice was correctly received or processed. If either of these situations occurs, a person ‘presumed’ to have consented actually objected to the donation. Ethically, some argue that the opt out systems do not respect an individual’s right not to choose.

Solving the problem of organ shortages while still valuing an individual’s autonomy and right to choose is a complicated task that has both legal and ethical implications.

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