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In an earlier piece in this journal, I argued that David Estlund's notion of 'normative consent' could, in conjunction with Peter Singer's principle that we ought to prevent serious moral evils where we can do so without significant loss, provide a justification for an opt-out system of organ donation. 1 This argument has recently been subjected to forceful critique. 2 The aim of the present note is to clarify and defend my position.
First, the intent of my original article was not to provide a complete defence of an opt-out system of donation. Rather, it was to show how normative consent might figure in such a defence and to suggest that this idea should be given more attention. Nonetheless, it is worthy of further consideration only if it has at least prima facie plausibility. Potts et al criticise me on both moral and political grounds, claiming that donation is not generally a moral obligation and that my proposal is a 'recipe for totalitarianism'. 2 I believe that they are wrong on both counts.
The morality of taking organs
Potts et al point to a 'growing moral and scientific agreement that the organ donors in heart-beating and non-heart-beating procurement protocols are not dead when their organs are surgically removed'. 2 I am aware that the criteria of death are subject of much controversy. 3 4 This is a problem for any justification of organ procurement. If you reject brain death, you presumably think either that it is permissible to take organs from those who are still alive or that our present practices are impermissible. It does not, however, raise any particular difficulty for my argument, since nothing in my article was about the time at which we should take organs.
Recall that I grounded the duty to donate on Singer's 'greater moral evil' principle, which he uses to argue that we have a duty to give money to alleviate suffering in the Third World. 5 It is not a requirement that this aid saves lives-he explicitly includes measures that improve quality of life-and so one could have a duty to donate kidneys (if doing so involved no significant moral loss) in order to save someone from a lifetime on dialysis.
Nor is it necessary that the...