Presumed Consent: The Tories want to nationalise our bodies

Once again the government is taking measures to extend significantly the power and outreach of the intruder state. If Parliament passes proposed new legislation this autumn introducing an “opt-out” system for organ donation, the principle of “presumed consent” will be enshrined in English law by 2020.

This initiative, for PR reasons, has been named “Max’s Law” by Theresa May, after a 10-year-old boy whose life was saved by a heart transplant. That is nauseatingly typical of the cynical fashion in which politicians hijack good and praiseworthy actions by private citizens on a voluntary basis and conscript them into the service of creeping authoritarianism.

Voluntary organ donation is an admirable act of generosity that has saved many lives. It is a classic instance of what individuals in society, motivated by goodwill and philanthropy, can achieve for the mutual betterment of human existence. It is a profound expression of charity, in the best sense. But the state and the political pond-life that battens on it cannot bear to see voluntarism working, without intervening to harness a benevolent concept to the juggernaut of state control, tarnishing and discrediting it in the process. What was formerly about altruism is now about power.

There is an enormously important principle at stake here. This law is about the nationalisation of the bodies of every English citizen. By ending the highly successful “opt-in” system for organ donation, with 37 per cent of England’s population already voluntarily signed up on the NHS Organ Donor Register, and substituting an “opt-out” system whereby individuals have to sign a register to reclaim ownership of their organs, the government is asserting ownership of our bodies.

None of the weasel claims that an opt-out system would increase the rate of donations – discredited and dishonest, as evidence shows – even if they were true could justify such a massive extension of the pretensions of the state. Not even the former Soviet Union made such a claim. Note that this magnification of state power, which fundamentally negates the autonomy of the individual, is being promoted by a Conservative government. Could anything better illustrate the philosophical and moral deracination of the party of Disraeli and Churchill?

Habeas Corpus? Yes, let’s be having all your carcases – welcome to the Chequers Soviet. The assumption that the people of England (we shall address the Scottish and Welsh situations imminently) cannot be trusted to exercise discretion in bestowing their organs for the benefit of others is the most extravagantly socialist concept anyone could devise.

Organ donation is precisely that: a voluntary donation, a gift. Under Max’s Law – more accurately May’s Law – donation would be supplanted by appropriation. It would be done under the mantra of “presumed consent”. “Presumed consent” is an oxymoron: of all human acts, consent is the one least susceptible to the presumption of others. Presumed consent is non-consent. The requirement of consent defers to individual autonomy; the presumption of it is a negation of that autonomy.

On those grounds alone, an opt-out system should be untenable in the eyes of any conservative. Beyond that, however, the whole proposal is an imposture, as is proved by the experience of the two other British nations. In Scotland, the only country on earth that makes North Korea look like an early rough draft by Hayek and Friedman, there has long been an unhealthy obsession with opting out and presumed consent because it extends state control. Opt-outs are a favourite socialist device: they served trade union militants well in the days of the compulsory political levy.

In 2013, however, the Scottish government was forced to put its plans for presumed consent legislation for organ donation on the back burner because there was “no consensus” among the Scottish Transplant Group (STG), its medical and patient advisory panel, that it would increase donation rates. “No consensus” was euphemistic politico-speak reflecting the fact that just one group member supported the proposal. Even Alex Salmond’s notorious chutzpah could hardly translate that response into “We’ll take that as a yes, then.”

Of course, in politics, you can’t keep a bad idea down, so last summer the Scottish government returned to the charge and is now pledged to introduce an opt-out system before the next Scottish election in 2021. There is no excuse for such a move, considering Scotland has a spectacularly high rate of voluntary donation with more than half the population on the NHS Register – 2,724,358, or 50.4 per cent, by last month. The pretext for this volte-face was the “success” of the opt-out scheme imposed on Wales since 2015.

That is an interesting interpretation by the Sturgeon regime. The Welsh government’s figures show that in the 21 months before the introduction of the opt-out law there were 101 deceased donors in Welsh hospitals; in the same period after the change in the law there were 104 donors. The increase of three so eagerly – and without specifying numbers – seized upon by the Scottish government is, of course, statistically irrelevant, obviously relating to random clinical circumstances.

No professional statistician would rate that as an increase, nor does the Welsh government. Since, however, only 6 per cent of the Welsh population, presumably largely ignorant of the new situation, have exercised their right to opt out, the remaining 94 per cent of the Sons of Glendower belong bodily to the Welsh government.

The new regimes awarding body ownership to the state are being hyped, on the Brexit model, as “soft opt-out” systems, because they allow patients’ families to object to “harvesting” of organs “if they strongly believe their dead relative would not have wanted it”. After a decent lapse of time, no doubt we shall be told that puts too heavy a burden on traumatised families, so it is necessary to move to “hard opt-out” where nothing except the name of the deceased on the opt-out register will save his organs from state piracy.

There are further ethical issues. We do not have a satisfactory clinical consensus in Britain regarding the definition of death. In the words of one doctor: “Most organ donors, including those who give explicit consent before they die, are unaware that their hearts may be beating when their organs are taken…” There is a section of medical opinion that favours abandoning the “dead donor” rule and removing vital organs from those admittedly still alive though unconscious. What if the removal of organs becomes the actual cause of death?

There are issues here that demand serious in-depth debate. That debate should not be bypassed in favour of legislation on the hoof to aggrandize state power. Nobody wants to discourage voluntary organ donation, but we already have the empirical evidence that an opt-out system does not increase donors. It could even provoke a backlash, in a post-referendum Britain where people are increasingly determined to challenge the heavy-handed entitlement of the elites.

This political interference destroys the merit attaching to voluntarism and, like all socialist measures, infantilises the public. Freeborn Britons should not have to redeem their bodies, as in a pawn-shop, via an opt-out register. Max’s Law is more like Marx’s Law. This is a presumption too far.