Press Release 08/2018

Between self-determination and solidarity: Ethics Council debated opt-out system for organ donation

On 28 November 2018, an orientation debate took place in the German Bundestag on whether an opt-out system should be established in future instead of the current opt-in system to improve the desolate situation in organ donation. Decreasing donor numbers and long waiting lists give rise to calls for fundamentally different approaches. But what are the ethical challenges raised by the possible new regulations for patients, relatives, medical staff and future donors? On Wednesday, 12 December, the German Ethics Council discussed the advantages and disadvantages of opt-out organ donation at a public evening event that was attended also by several members of the Bundestag.

In his welcoming address, Peter Dabrock, Chair of the German Ethics Council, emphasised the importance of the current debate but also pointed out that most of the opponents share a common goal: to increase the number of organ donations.

Council members Reinhard Merkel and Wolfram Höfling then discussed the different legal interpretations of the opt-out system. According to Reinhard Merkel, organ donation represents an individual act of post mortem solidarity with an unknown other. No one could be forced to do so by law. However, the coercion to make a declaration during one's lifetime is permissible in a legal system that knows much more important imperatives of compulsory law to solidarity in order to save human lives without further ado and makes sense in terms of legal ethics.

Wolfram Höfling, on the other hand, argued that the common justification of the opt-out system in the law of organ acquisition fails to recognise that every decision on organ donation is an existential decision about one's own death. The opt-out system unduly restricts the fundamental right to life and physical integrity. Instead of statutory regulation, Höfling proposes to reorganise the German transplantation system as a whole based on the rule of law.

In the second part of the debate, Council members Wolfram Henn and Claudia Wiesemann discussed questions of medical ethics and the practical implementation of the opt-out system. According to Wolfram Henn, opt-out with a right to veto for relatives does not constitute an intrusion on the right to self-determination in the age of well-informed and responsible citizens. By taking into consideration the life chances of seriously ill people, it is rather ethically necessary to define a refrain from opting out as acceptance. At the same time, Henn stressed that this requires an environment of balanced awareness raising and easily accessible and at the same time binding information.

Claudia Wiesemann replied that there was no donation problem, but a reporting and organisation problem on the side of the hospitals. The planned introduction of the opt-out system addresses the problem in a wrong way and contributes to obscuring the internal ethical conflicts in the transplantation hospitals. Doctors and nursing staff involved in the identification of potential donors and the removal of organs are confronted with moral obligations that contradict each other. These ethical conflicts of organisation must be recognised and resolved.

In the concluding panel discussion, moderated by Council member Alena Buyx and open to the audience, there was agreement that the structural problems of organ donation need to be solved urgently, despite the different positions on the introduction of the opt-out system. This would require sufficient information and active involvement of the persons concerned. In his closing remarks, Peter Dabrock appealed to the German Bundestag to seek viable compromises in view of the common goal and to find concrete political solutions in the ongoing parliamentary debate.