Polly Toynbee thinks the case for moving to a presumed consent system for organ donation (as now proposed by Gordon Brown) is overwhelming. I think a convincing case can be made for it - for an opt-out rather than opt-in system - but I don't think Toynbee makes it. For her, it appears, two arguments clinch it: first, that by providing more organs, such a system would save many lives and improve many more others; second, that there is 90% public support for it. But, as weighty as these arguments may be thought to be, they could not be conclusive if it were also the case that this way of obtaining human organs breached some fundamental human right. Just to throw in a fanciful example in order to fix the point, the fact that there were significant net health benefits for the rest of the population from enslaving a certain number of their fellow citizens and harvesting some of their organs would not make the move legitimate, however many people supported it. We take the rights of those who are (putatively) to be enslaved and harvested as ruling out such treatment.
Toynbee and anyone else who supports changing to a presumed consent approach for organ donation needs to acknowledge and meet the objections of those who believe the state has no right to the bodies of the deceased. Let us take as a starting point that each of us has property rights (though these are not absolute or unlimited) over his or her body while we are alive. It could then be argued that, at death, these rights pass to the state. Others, however, might think that they pass to the families of the persons concerned. I don't propose to argue this one way or another: I will merely assert that, for my own part, I take the latter view; and I think there are powerful reasons within our culture why it would be politically imprudent to set this view aside. For one thing, those who believe that their souls, or the souls of those they love, will not be able to rest in peace if some of their organs are removed should be able to have their corpses treated accordingly - that is, left intact. It is not to the point for atheists to say that their belief is merely metaphysical nonsense. That people believe it in this case trumps whether or not it is true, since such beliefs go to the heart of people's conception of who they are and of the conditions for leading a fulfilled and meaningful life.
Everything, consequently, hinges on the issue of consent. A person (or her family when she is dead) can have a right in some matter that may not be violated by others; but, as with most rights, consent can be given that allows others a power of decision they did not previously have. Thus, the property - the house, the garden, etc - may be yours, but with your consent (that is, you invite me) I come to stay. I may have the copyright in something I've written, but if I say you can publish it for nothing, then so you can. Lucy and Shmuel own their own organs, but if they consent to these being used, once they are dead, for people who need them, and/or their families give that consent after Lucy and Shmuel are dead, then it is no violation of the original right that this happens.
The most clear and obvious way of giving one's consent is to give it expressly. You say or you write that you consent to whatever it may be. But words are not the only way of giving consent. Here I refer not to the flawed notion of 'tacit' consent familiar to readers of Locke's Second Treatise of Civil Government - where from various actions it is inferred that someone has consented to the legitimacy of the government. I have in mind, rather, a situation in which people are perfectly aware that their consent is being sought and they deliberately give it, but by signs other than speech. A hand signal might do it, for the most simple example: you say, 'What about I borrow this book and let you have it back on Monday?' My mouth being busy on the phone, I give you a thumbs-up. A professor says to his class, 'OK with everyone if we go on for 15 minutes longer today? I'll take it as a "yes" unless you say different.' Silence here is the signal of consent.
But for it to count as a meaningful case of consent, certain conditions have to be met: a) those whose consent is being asked must know that it is being asked; b) it must be clear to them what the means of signalling that consent are; c) these means must not be excessively demanding, costly or unreasonable in some other way. (Were that professor to say 'Indicate your dissent by reciting the whole of Hamlet's "To be or not to be" soliloquy backwards, or by handing me a couple of tenners, or by insulting your neighbour', he could not take it that he had the consent of the class even if they all sat there impassively.)
The consent of people may be sought for the use of their organs if such conditions are replicated, mutatis mutandis. It would require an energetic public campaign to ensure that everyone was aware that their consent was being sought concerning use of their organs once they were dead, and that it would be taken as having been given if they didn't opt out. Opting out must be easy to do - not too onerous, not too costly. There should probably also be an appeals procedure, to enable families to make a case where there had been no pre-decease opt-out but they could argue lack of knowledge (despite all publicity etc) or some other reason for an exception to be made. If such a system were effective, this would not even be consent presumed, it would be consent given. (I don't think that conclusion is affected by the considerations Chris sets out at S&M.)
