Spain has the highest level of organ donation in the world. Many attribute Spain’s success to its opt-out system of organ donation, yet it is clear to see that this is only one of the factors at play.
Both Dr José Ramón Núñez, head of the WHO’s Donation and Transplant programme, and Juan Pedro Baños Jiménez, president of the Spanish Association of Transplants, agree that there are factors that influence organ donation rates other than simply giving the state de-facto ownership of your organs. Many Spanish doctors explain that in order to affect the level of organ donations a nation must change public opinion - not just legislate to prevent choice.
Dr Núñez claims that Spaniards’ faith in their well organised system makes them more willing to donate. Juan Pedro Baños Jiménez cites Spanish methods of communication with its citizens and press coverage of recipients expressing the virtues of donation. (A great example of this is the song Gracias por Ser Donante). In the UK, there is no popular culture equivalent.
In addition, Spain accepts organs from people that many nations would deem too old. While most countries have an upper age limit of 65, Spain does not. The oldest age of a successful organ donor in Spain was 91. Donations from over 65s account for only 7 percent of total donations in the United States but in Spain, one in every 10 donors is 80 or older. Naturally, as the rate of mortality falls, so does the availability of organs. By accepting organs from older donors, Spain combats this problem, an example of the country’s ingenuity in maximising the availability of organs.
Organ transplants are more routine in Spain thanks to doctors who are ready and able to perform transplants. By contrast, specialist transplant doctors in the NHS in England already report being swamped. Naturally, the Spanish system inspires trust as people have confidence that their donated organs will be used well. In all systems, those in favour of organ donation will donate and those opposed will not, as long as they can do so legally. With an opt-out system a government is trying to nudge those who are indifferent into becoming donors. Looking at Spain, it is equally likely that faith in the system will sway these people, doing so in a far less intrusive manner and still achieving the goal of higher organ donation.
And yet many still praise Spain’s opt-out system. Surely that is a fool proof way of increasing organ donation? Wrong. Wales has had an opt-out system since December 2015, yet the number of organ donations fell from 64 in 2015-2016 to 61 in 2016-2017. This shows that the number of people who adopt the default position (i.e. not positively making a decision) is not as significant as one may expect and that an opt-out system may not increase numbers as expected. The opt-out system did not increase the number of people on the registry as it is still possible for individuals to opt out. Moreover, families of the deceased can override the donor’s choice to donate, which in turn shows the importance of Spain’s organ donation campaign, and that a nudge alone is not enough.
According to an article in the Independent, ‘in recent years around half of British organ donors’ status on the register wasn’t known at the time of death’. It is apparent, in Britain, the system is already ineffective. If we are unable to record the number of people who have opted in, how can we expect to record the number of people who will opt out. Clearly, there are deeper problems with our organ donation system than simply the concept of choice.
All of this relates to Nudge theory. The aim of libertarian paternalism is to make it easier for people to make the ‘right’ decision by helping them overcome the cost of actively considering and making the decision. Nudge theory is, however, pernicious. It recommends the government nudge us towards ‘better’ choices. Why should the government be able to pass value judgements - or, worse, assume ownership of an individual’s body? By granting the government this power to pass moral judgement, the system invites itself to be abused. Not only is the opt-out system paternalism, it is particularly bad paternalism. In Spain the logistics behind organ transplants is done by the National Transplant Organisation (Organización Nacional de Trasplantes) and it is after the introduction of this organisation that organ donation numbers started to rise. Thus, the paternalism of the nudge (the opt-out system) is not as effective as the ‘paternalism’ of the National Transplant Organisation.
The takeaway point of Spain’s success is that they have a successful system that people trust. In a time in which the NHS comes under constant fire, these conditions are ones that England and Scotland can replicate but not simply by introducing an opt-out system.