Organ removal – safeguarding the rights of the individual

The «objection solution» makes people who are unable to oppose the removal of their organs to organ suppliers

Guest commentary by Christoph A. Zenger*

(14 December 2021) Edit. This article appeared in the NZZ on 17 February 2021, before the popular initiative was conditionally withdrawn.

The Transplantation Initiative aims to make as many organs of dying people as possible available as a resource for transplantation medicine. To this end, the «consent solution» for organ removal provided for in the current constitutional law, is to be replaced by an «objection solution».

The Federal Council has submitted a «counter-proposal» to the initiative. In principle, this does not differ from the initiative; it too serves to introduce the contradiction solution.

But the «counter-proposal» shows how the Federal Council would like to concretise the initiative at the legislative level: organs may be removed even from 16-year-olds if they have not objected. Although they can only conclude major transactions and exercise political rights independently at the age of 18, they would therefore have to form an opinion on organ removal before their 16th birthday and object if necessary. Passing travellers should also be donors.In both cases, contact should be made with relatives. In all other cases, the next of kin are to be given a subsidiary right of objection. However, the «counter-proposal» does not set any minimum deadlines for the search for a documented objection and for relatives, but delegates the regulation to the level of ordinance law. The Federal Council can amend the ordinance on its own initiative and shorten the deadlines further and further without democratic control, if it sees fit.

The «counter-proposal» is completely silent on how thorough the clarifications should be – and there is no guarantee that an objection by the dying would be heeded. In terms of content, the «counter-proposal» thus does not constitute an alternative to the initiative, but merely elaborates on it and even expands on it.

The «counter-proposal» therefore also shares the problems of the initiative: the objection solution makes it possible to exploit the predicaments, dependencies, inexperience, ignorance, inability and weakness of judgement of many people; they become organ suppliers without knowing about it or being able to defend themselves.

One may ask what prompted a majority of the Federal Council to push aside fundamental personal freedom and democratic rights in such a way. It cannot be the benefit for the organ recipients. Contrary to the Federal Council’s presentation, the few scientific studies that have been carried out do not show that more organs would become available thanks to the objection solution.

And even if this were the case, it would remain open whether these organs come from unsuspecting dying people. So it must be weightier political interests that the majority of the Federal Council wants to press home. It is neither the interests of transplant medicine, nor the will to do good for the few potential organ recipients; both are of all too marginal political importance when viewed as a whole.

It is more likely that this is intended to pave the way for an industrialised predictive, preventive and prescriptive medicine to advance its much broader neo-paternalist claim to control the population by invoking precedent.

It is equally conceivable that particular ethico-political ideas that place care above autonomy and the justice of democratic decision-making, have prevailed. Neither, however, would do justice to the existential significance that a consent to organ removal has for the persons concerned.

Source: © Neue Zürcher Zeitung, 17 February 2021. Courtesy of the NZZ and the author.

(Translation “Swiss Standpoint”)