Normative consent is not consent.

The UK has an opt-in system of consent for postmortem organ donation. More specifically, the Human Tissue Act 2004 prohibits the removal, storage, and use of organs postmortem for a range of ‘‘scheduled purposes’’—which include transplantation—unless ‘‘appropriate consent’’ has been given. Appropriate consent can be given by the donor premortem by signing and carrying a donor card, or by opting in to a donor registry. In the UK only 25 percent of the population is registered, although a much higher percentage of these people claim to be willing to donate. Although such evidence must be taken with caution—it is all too easy to say that we are in favor of doing something when we don’t have to commit to doing it—it would seem that many individuals’ preferences and wishes are not acknowledged. That is, many individuals seem to be willing to consent but, in fact, do not get around to making an explicit act that signals, and provides evidence of, their consenting. This is, perhaps, not surprising. There are familiar kinds of psychological inertia that may stand in the way of turning our wishes or desires into an explicit, public commitment. This deficit in explicit consent might not be a problem if there were a surplus of organs. But each year, many people suffer greatly, and many die, while waiting for transplants. An increase in organ donation would thus serve to benefit many, in substantive and important ways. Although the deceased donor has no use for her organs, a recipient is given additional years of life or an improved quality of life. With this striking contrast in costs and benefits in view, one tempting solution is an opt-out system. Rather than requiring an explicit act that signals, and provides evidence of, consent, opt-out systems presume the consent of individuals unless the agent chooses to opt out. That is, the onus is put on the individual to explicitly signal (and provide evidence of) a refusal to allow his or her organs to be used. Opt-out systems require institutions and systems to be in place to ensure that individuals know that it is within their power to opt out, and to offer them the opportunity to opt out in an easy, costless way. Given people’s apparent inertia with regard to explicitly signaling preferences that they claim to have, opt-out systems seem to allow increased procurement of organs in an unproblematic way. But opt-out systems are taken to be problematic for a number of reasons. First, presumed consent is not an explicit act of consent—indeed, for some, it is not consent at all. Explicit acts of consent are actions by which an agent knowingly expresses her willingness to set aside certain rights that she has. But inaction, it may seem, cannot perform this role in the same way, or with the same degree of assurance. An agent’s inaction may reflect her ignorance or her decisional inertia, rather than being an expression of a decision to refrain from opting out. We have already noted that an appeal to people’s expressed attitudes about organ donation may not correlate with the decisions they would actually make. Respondents recognize that organ donation is an estimable thing to do. It is all