Sherry F. Colb

Cass Sunstein's Views About Organ Donation: When is a "Nudge" Illegitimate?

Monday, September 14, 2009

In April, President Obama nominated Cass Sunstein to be the Administrator of OIRA (the Office of Information and Regulatory Affairs), an office within the OMB (Office of Management and Budget) that oversees the federal government's regulatory apparatus. Sunstein is currently a professor at Harvard Law School, and he has taught and written in the areas of constitutional law, administrative law, and regulatory policy.

In the five months since Sunstein was nominated, two senators have placed holds on his nomination, preventing it from coming to a vote because of Sunstein's expressed view that hunting is immoral. Just last week, however, the Senate voted 63-35 to invoke cloture, thus ending debate on the nomination and bringing Sunstein to a full Senate vote, by which he was confirmed, 57-40, on Thursday.

Among other complaints that Republican opponents have raised about Sunstein, one that has lately appeared in the press is captured in the following headline from the conservative website "Obama Regulation Czar Advocated Removing People's Organs Without Explicit Consent."

In this column, I will consider the "organ removal" position that Sunstein has articulated and then evaluate the views of those who would challenge his suitability for public office on the basis of the position.

The Paper Trail: Sunstein's Book Nudge

Like many people who have encountered confirmation challenges before the Senate, Cass Sunstein has a "paper trail." He is a prolific scholar who has expressed ideas and views about some of the more vexing and controversial issues of the day, including the question of organ shortages. In the United States, we have an organ shortage. The demand for organs is greater, in other words, than the available supply (at least at the current legally permissible price, which is $0). As a result, thousands of people die each year because they are unable to receive the life-saving organ transplants that they need.

One factor that contributes to the shortage is the failure of many people to choose to become organ donors upon their death. As a result, when a healthy person meets an untimely demise, her organs are often buried or cremated, rather than being given to a person who will perish without a transplant.

Responding to this tragic state of affairs, Cass Sunstein and Richard H. Thaler, in their book, Nudge: Improving Decisions about Health, Wealth and Happiness, suggest that people's decisions are often a product of factors other than rational choice. For example, people's selection of what to eat in a buffet will sometimes turn merely on where a particular food item appears in the array of options on display. Putting a healthy food choice in a desirable location, then, can help "nudge" children at school to select the healthy choice, without anyone having to do anything blatantly coercive.

We can, argue Sunstein and Thaler, similarly "nudge" people to behave in an altruistic fashion – by donating their organs after death – by changing the default option from "no" to "yes."

Changing a default means altering what choice will be "presumed" in the absence of an "opt-out." An airline, for example, might presume that everyone wants a drink during the flight and accordingly, offer each passenger a choice of water, fruit juice, or soda. People facing such a choice will likely select one of the above, although a few may decline and say that they do not want a drink at all. In financially trying times, however, the airline might instead presume that no one wants a drink, providing a beverage only to those passengers who make a point of requesting one. In both cases, airlines are prepared to give people drinks, but the first scenario will – foreseeably – produce more beverage requests than the second.

Presumptions are sometimes simply a reflection of the odds. If we know that most people on an airplane flight will become thirsty before landing, it makes sense to presume that any given passenger wants a beverage and then proceed accordingly, by offering one to each passenger.

On the other hand, presumptions can often reflect something other than a simple factual determination of what people are likely to want. Because we know that people are likely to stick with a default option, rather than depart from it, a presumption can reflect the policy choices of whoever is electing the default position, regardless of what the target audience might actually want. In the latter case, the one who sets the default is providing a "nudge" to her targets to select the "preferred" option.

Few people would quarrel with "nudging" children to eat the right foods. This is because we can all agree that it is better for children to eat healthily, and it is best of all if children do so in a minimally "pushy" context. Forcing children to eat their broccoli while they yell and scream about it seems likely to be counterproductive, producing rebels in the form of closet candy collectors.

On the other hand, "nudging" adults to act against their own self-interest to further a public agenda might seem objectionable to people. And this is where the critique of "nudging" organ donation comes in.

Nudging an Organ Donation

In our present system, the donation of organs and tissues – whether from live or dead donors – generally proceeds on the presumption of non-consent. That is, in the absence of an affirmative indication of consent by a donor (or an appropriate next-of-kin), no donation will take place. This is true despite the fact that if we were to ask those who had never affirmatively indicated a willingness to donate organs whether they were willing to do so, at least some and perhaps many would assent.

Sunstein and his co-author propose that to help address the organ shortage, we should change the default rule and presume that, in the absence of an opt-out, every person who dies has consented to donate her organs for transplantation. British Prime Minister Gordon Brown made a similar proposal in 2008. Because many people simply stay with the default setting, whatever it happens to be – either because they have not given the matter any thought, or because they prefer not to bother changing the setting – this default shift could potentially have the effect of making many more organs available for transplantation.

Why has this proposal produced outrage among some conservatives?

In presuming consent, we necessarily face a downside risk. In the "by request only" beverage selection, for example, many people who truly are thirsty will not ask for a beverage (because they don't want to disturb anyone, or because they do not realize they have the option), and they will therefore suffer from the presumption that they do not want a drink. Indeed, this appears to be the purpose of the presumption – with a default setting of "no beverage," the airline will save money by not having to quench as many people's thirst.

In the organ-donation context, the downside risk of presuming consent is that someone who did not want her organs to leave her body will – at a point when expressing opposition is no longer possible – be robbed of her physical integrity after death.

This strikes many as a gruesome possibility, especially for those who have reasons of conscience (including religious reasons) for wanting to be buried completely intact. The "safest" bet, under these circumstances, thus might appear to be a presumption of non-consent. That way, emergency medical workers and hospitals will take organs only from those who have truly indicated an affirmative wish to donate.

The problem with this approach, however, is that it, too, has a downside risk – the death of people who could have lived if only they had had access to a transplant. Moreover, unlike a live donor – for whom the procedure itself carries the risk of death or illness – the dead person does not need her organs anymore. She can no longer experience the loss of her organs as a loss, and it is arguably inappropriate to value her post-mortem bodily integrity much more highly than the lives of the people who could be saved with a transplant.

This calculus, moreover, is hardly foreign to our legal system. When a person dies under suspicious circumstances, the government will sometimes require an autopsy to determine the cause of death. This is true even if the deceased or his family members have unambiguously indicated opposition to an autopsy, for religious or other reasons. The government's strong interest in determining the cause of death – whether it is homicide, a contagious illness, or some other cause – is, at least in some cases, great enough to overcome the deceased individual's right to bodily integrity.

When the interest is in saving a patient's life, rather than investigating a homicide, however, opponents of the "organ nudge" do not recognize the interest as strong enough even to alter the default "non-consent" rule. Such a rule would require only that potential donors affirmatively indicate their opposition to donation, in order to pursue their interest in having usable organs buried or cremated rather than transplanted to a person or persons in need.

The Contrast with Abortion

Though it may perhaps be unfair to make this assumption, I will assume here that most of the conservatives opposing Cass Sunstein's confirmation because of his organ proposal in Nudge consider themselves "pro-life," in the sense that they believe a woman should not be allowed to terminate an unwanted pregnancy at any stage, regardless of her reason for wanting to do so, unless she will die without an abortion (and perhaps even then). If I am correct in my assumption, then most of those who oppose Sunstein's proposal and believe it to be disqualifying, are simultaneously taking the following two positions:

First, they are taking the position that a person who has already died but who, while alive, might have wanted to be buried with all organs intact, has the right to maintain his post-mortem bodily integrity (despite the fact that either decomposition or cremation will eventually disrupt that integrity, in any event). Furthermore, that person has this right even in the face of a competing claim for life-saving medical treatment and in the face of his own failure to say anything, one way or the other, about whether organ donation would be acceptable to him, in the event of his sudden death.

Second, they are taking the position that a person who is alive and pregnant and does not want her body occupied by another living creature (perhaps a moral person, perhaps not, depending on one's view of what characteristics qualify a being for moral personhood) – an occupation that causes nausea, other discomfort, and various risks to her health – should be required nonetheless to be occupied by an embryo or fetus and then to labor and deliver a baby (or be surgically cut to remove the baby) against her will, without her consent and indeed, even with her explicit non-consent.

These two positions seem very difficult to reconcile. One refuses a lesser bodily invasion, done to a deceased person, in the face of his silence – a silence that might well have resulted from his not having considered the issue at hand. The other licenses a massive bodily invasion, done to a person who is alive and potentially imperiled, in the face of her avid, specific contrary position on an issue on which she cannot help but focus intently.

Why the Difference?

What unites the view that Cass Sunstein is wrong to "nudge" people to donate their organs after death (wrong enough to merit a conservative talking point) with the view that the government would be right to force women to remain pregnant and give birth while alive?

Ironically, it may be the "natural" default settings in which deceased potential organ donors and live pregnant women find themselves. A person who has just been killed in a car accident will not be an organ donor unless someone intervenes and thereby rejects the status quo (in which the potential recipient dies without his transplant and the potential donor's organs are buried or cremated along with him). By contrast, a pregnant woman will remain an occupied person if she does not actively interfere with a process already in progress. Continuing pregnancy to term and through labor therefore appears to represent the "natural" default.

The difficulty in assigning any moral significance to this default setting, however, is that with the advent of modern medicine, defaults change. Everyone understands this when it comes to illness. We do not consider a state of illness to be an acceptable status quo; we intervene medically and surgically to alter that state. This is why, for example, we speak of a right to refuse medical treatment – precisely because the "default" setting in an illness situation is to supply such treatment, and the departure from the norm is the patient's decision to decline.

Interestingly, the same interventionist default setting accompanies modern pregnancy in the United States. Obstetricians routinely medicalize labor and delivery, including having women lie down with their feet in stirrups (so that delivery requires a woman to fight gravity), receive epidural anesthesia (which does cross the placenta and can also slow the progress of labor), receive pitocin or other labor-accelerating chemicals (sometimes after an epidural intervention), and ultimately, far too often, have a C-section. If a healthy woman wishes to deliver her baby in a "natural" way – at home, with a midwife, without medication – she will find herself steered away from this "alternative" method.

One must, therefore, make a normative decision about whether a particular approach is good or bad, before deciding whether to embrace it. One cannot avoid the decision simply by citing the fact that something is or is not a natural default. Just as we might believe that treating illness (rather than letting it "run its course") is the best default setting, we might equally believe that transplanting organs (rather than allowing a potential recipient's illness to run its course) is the best approach. And we might think that taking a pregnancy to term (with or without the standard medical interventions) is the best approach as well.

On the other side of this balance, of course, are the autonomy interests of the individual who is not interested in having medical treatment, who does not wish to have his organs taken away after death, or who does not want her body inhabited, stressed, stretched, made ill, and subjected to excruciating pain. For those autonomy interests, we allow a person to refuse to take what society views as the best approach, whether that means permitting a patient to refuse chemotherapy or a respirator, tolerating intact burial while a nearby heart patient dies, or allowing a woman to induce contractions prior to fetal viability, so that a fetus dies.

The question that remains, however, is whether to presume that refusal, or whether to ask a person to say "no" if she means no. People who are pro-life are more than happy to presume that a woman wishes to remain pregnant (and pro-choice individuals do not resist this presumption, if women are freely allowed to rebut it). Perhaps the same people should be less resistant to the presumption that we will all do the right thing – and permit our organs to save a dying neighbor after we have died and can no longer use those organs – in the absence of an explicit indication that we refuse to do so. Perhaps, in turn, the reaction to Sunstein's "organ nudge" proposal is misguided, at best.

And surely, Professor Sunstein's having taken a position on this complex, important issue should not impede his confirmation – unless we want to motivate potential future nominees to adopt a default setting of steering clear of vital but controversial topics.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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