The understanding of presumption of consent to organ donation may be considered, by some practitioners of law or science, to be an inaccurate and misleading term. This stems from the general understanding of 'presumption' in law and science: as an inference that is made on available fact or evidence with the understanding that vital information that can render the inference invalid may be missing. In law a presumption holds – that of innocence, for example – until a substantial body of evidence is produced to the contrary. Just like a scientific theory or hypothesis, a legal presumption is maintained for as long as no evidence is provided to disprove it or no valid objection is raised against it. A presumption, in law and science, is therefore a 'provisional estimate of facts' based on some accepted fundamental state or pattern of behaviour.
Unlike the presumptions in law or the hypotheses of science, presumption of consent for the use of body organs cannot afford any possibility of abandoning the presumption, reversing the decision or of retracting any action based on that particular decision. The presumption of consent for organ donation cannot therefore be taken as a presumption of donor willingness, with the specific understanding that there will be a provision for changing the course of action should further evidence emerge, but rather as a presumption of state rights to post-mortem body organs, unless an objection by the 'occupant' of the body is raised whilst the 'occupant' is still in 'residence.
Opponents of presumed consent argue that the absence of donor willingness is morally unacceptable because it can be seen as a violation of their wishes.It is clear that presumed consent is advocated as a means of meeting organ donor shortages and not because the state wishes to assume ownership of body parts per se. Nevertheless, it places the greater emphasis on functionality of body organs and how they can be best utilised to sustain life rather than on the importance of requiring permission of the individual to donate his or her organs. It also takes away the power to 'gift' that donorship.
Consent assumes a central place in legal and ethical analysis of transplantation practices, notably with regard to living donors but also vis-à-vis cadaveric donors. Indians aren't all that generous when it comes to donating their organs. Spain has 35.1 organ donors per million, Britain (27), USA (26), Canada (14) and Australia (11) whereas India's count stands at 0.08 donors per million population. It is estimated that every three minutes, a patient requires an organ transplant. Some experts say more than two lakh Indians require organ transplantation annually. (Source).
According to Rousseau, "Through our relationships with the State are born obligations that are entered into involuntarily for the good of the common or the whole."
It is essential to introduce presumed consent legislation in India. However, this will be possible only after creating widespread awareness about organ transplantation and addressing the religious and cultural overtones that are associated with it. It can be effective only when there is good infrastructure, for instance an actively involved government agency that coordinates procedures for the removal, distribution, transportation and transplantation of organs.Though it is evidently easy to say that it is essential to introduce presumed consent legislation in india,given we create widespread awareness etcetera,but in a country where there is no existent culture of consent,how can we all of a sudden think of a legislation?A country where women,in practice,are forced into non consensual marital sex-the idea of presumed consent is too far fetched.It somehow whispers exploitation.
Written by Ilakshi and Meghna Jayaraj.
Written by Ilakshi and Meghna Jayaraj.
Edited by Rai Sengupta
