theoretical versus pragmatic considerations The organs crisis and the Spanish model :

In the United Kingdom, the debate about how best to meet the shortfall of organs for transplantation has persisted on and off for many years. It is often presumed that the answer is simply to alter the law to a system of presumed consent. Acting perhaps on that presumption in his annual report launched in July, the Chief Medical Officer, Sir Liam Donaldson, advocated a system of organ donation based on presumed consent, the so-called ‘‘opt-out’’ system. He is calling for a change in the law in England and Wales whereby consent to organ donation is presumed, making a person’s organs automatically available for transplantation after death, unless they registered objections to this while alive. Subsequently, the British Medical Association (BMA) lent its support to the introduction of such a system. The BMA contends that ‘‘the practice of presumed consent legislation has had a significant effect on the number of cadaveric donors per million population. ’’ It is often taken for granted that there must be a correlation between the enactment of legislation on presumed consent and an increase in organ donation and procurement. However, the correlation is not as straightforward as it might seem. It may be that other practical measures to encourage organ donation could be implemented without changing the Human Tissue Act 2004, an Act which has been in force for barely a year. An analysis by Abadie and Gay demonstrated that ‘‘presumed consent legislation has a positive and sizeable effect on organ donation rates’’(p599), but they themselves admitted that the correlation between rates of donation and presumed consent legislation is ‘‘not completely unequivocal’’(p606). It is true that among the most successful cases in procurement rates are countries with presumed consent legislation (Spain, Austria, Belgium, France and Italy). However, since some of the countries with the lowest success rates also have presumed consent legislation (such as Greece and Bulgaria), change in legislation is not an absolute guarantee of an increase in organ procurement (p607, p5). Unfortunately, there is no straightforward relationship between number of donations and legislative action, as there are in practice a number of other determinants. However, taking those matters into account, what Abadie and Gay do show is that if explicit consent (opt-in) countries such as the UK moved to a system of presumed consent, they would experience a 25% to 30% increase in the rate of organ donation (p610). Looking at current UK figures, this would represent a maximal increase in the rate of donation from 13 per million population to 16.9 per million. Even with such an increase in donor activity, the UK would still not have a rate of donation comparable with that of some other countries (p607). Spain surpasses all other countries in the success of their donation programme, with a donation rate of 33.8 per million population, nearly three times the current rate of donation in the UK (data for 2006 are available on the website of the Organización Nacional de Trasplantes; ONT). Consequently, Spain seems to represent a statistical outlier to Abadie and Gay’s analysis, suggesting that there may be other factors responsible for their donation rates in addition to its being a country with presumed consent. It is for this reason that it would be prudent for the UK to look to Spain in order to inform the organ donation process in general, and in considering any legislative changes in particular.