Is presumed consent legislation just black letter law? Methodological and theoretical lessons from the French case

Graciela Nowenstein

    Research output: Chapter in Book/Report/Conference proceedingConference contributionAcademicpeer-review

    Abstract

    Contrary to what is often stated in policy and ethical arenas, it is argued in this paper that no existing empirical data proves the superiority or the inanity of presumed consent systems when it comes to understanding variations in procurement rates. A historical analysis of the French case is presented that shows that only contextualized and historically based analyses of specific situations can help understanding such variations. Indeed, although organ donation from cadaveric donors has been governed in France by presumed consent legislation since 1976, such legislation has been applied exceptionally and in specific socio-political contexts. Actually, relatives of brain dead potential donors enjoy in practice a para-legal veto right and play the most central role in the process of deciding whether to retrieve the organs of a brain dead potential donor. The analysis of the French situation shows thus that there is no general, decontextualised answer to the question Do consent regimes explain variations in procurement rates? As a matter of fact, no pre-established connection between the two exists, for procurement rates vary together with micro and macro social and political contexts that differ historically and geographically.

    Original languageEnglish
    Title of host publicationORGAN TRANSPLANTATION: ETHICAL, LEGAL AND PSYCHOSOCIAL ASPECTS - TOWARDS A COMMON EUROPEAN POLICY
    EditorsW Weimar, MA Bos, JJ Busschbach
    Place of PublicationD-49525 LENGERICH
    PublisherPabst Science Publishers
    Pages155-162
    Number of pages8
    ISBN (Print)978-3-89967-415-6
    Publication statusPublished - 2008
    EventInternational Congress on Organ Transplantation - Ethical, Legal and Psychosocial Aspects - , Netherlands
    Duration: 1-Apr-20074-Apr-2007

    Other

    OtherInternational Congress on Organ Transplantation - Ethical, Legal and Psychosocial Aspects
    CountryNetherlands
    Period01/04/200704/04/2007

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