Forced organ donation: the presumed consent to organ donation laws of the various states and the United States Constitution

Albany Law J Sci Technol. 1999;9(349):1-20.

Abstract

The issues presented in this Comment pertain to whether there are substantive limits imposed by the Fourteenth Amendment upon the state legislatures which would defeat the recent, tentative steps of many states to pass laws authorizing presumed consent to organ donation. The final and perhaps least effective presumed consent law creates a presumption of consent to organ donation. The potential organ donor makes the choice whether to donate or not during his lifetime. This form of the presumed consent law would probably have the least impact on increasing the number of available donor organs. It permitted the coroner to harvest the eyes and corneas of deceased individuals if the coroner was unaware of objections from either the decedent or the family of the decedent. Presumed consent statutes should be found unconstitutional because they infringe upon a family's property interest in a deceased relative's corpse. However, due to the family's property interest in a relative's deceased body, as set forth in the next section, the result is that presumed consent statutes are unconstitutional. In order to find the presumed consent law unconstitutional, the Court would have to find that either: (a) the Fourteenth Amendment's liberty component included the family's right to determine what happens to a relative's body after death, or (b) that the property component included a vested state law property interest in the dead body.

MeSH terms

  • Humans
  • Ownership / legislation & jurisprudence
  • Presumed Consent / legislation & jurisprudence*
  • State Government
  • Tissue Donors / legislation & jurisprudence
  • Tissue and Organ Procurement / legislation & jurisprudence*
  • United States