On Wednesday the Organ Donation Act came into force: "force" (the government's words, not ours). This means that, based on a consultation of 17,000 individuals, the government has chosen to nationalise the organs of its citizens rather than gain their explicit consent.

The nationalisation is clear. On death, the person, after consulting with family, will be presumed to have consented to have their organs harvested: 

Firstly, the body should not become state or communal property on death. There are strong bodies of common law guidance, along with the cultural practice, in relation to the disposal of the body. The government stepping in and assuming the body is their's for the taking because the individual concerned did not check a box is a frightening reach of government power.

Secondly, the consultation of the family does not mean that the family may do with the body as they please. Tacit consent is cited here for funeral arrangements, and often there is a great deal of preparation beforehand including with wills and powers of attorney, but this should not happen with the harvesting of organs. Again, the government cannot simply step in here and take what is not theirs.

Thirdly, the sick do not have the right to the organs of the dead. There is no obligation to transfer ownership of organs from one individual to the other just because they are not in usage anymore. This may sound heartless, but there are two parties to this, and a Burkean conception of presence post-mortem is still important. Why else is there the veneration of the dead in British Culture?

Fourthly, the naming of the Act is wrong. This is not organ donation but organ seizure. A donation requires active consent, this quite simply is not. One must be confronted with the choice rather than have it decided in absentia. The use of this spin and misuse of wording is all the more sinister.

A lot of this revolves around Nudge Theory (Thaler and Sunstein) and resolving policy problems through the manipulation of choice architecture. However, this is not the manipulation of choice architecture but the manipulation of the legal status of one's self-ownership. Yes, there are not enough organs being harvested to fulfil demand, but there are different ways of presenting opportunities to donate organs that do not involve nationalising the bodies of citizens. They can present organ donation cards in more places and more frequently, such as on top of tax or GP-feedback forms. This would gain active consent rather than tacit.

This act will not even be guaranteed to increase the rate of organ transfers. Presumed consent, as it is officially known, has not been statistically demonstrated to increase transfer rates (Hitchen, 2008). This has been demonstrated in Wales, Sweden, Singapore, Chile, and Brazil (Arshad et al, 2019). In order for even critics to be satisfied, they have argued that the government must first approach the public to inform them of the change in the law (Bramhall, 2011). This has not happened, bar a single tweet from the Department for Health and Social Services. 

For presumed consent, the ends do not justify the means as it completely deforms the rights of the living. The government exists to uphold property rights, not to deprive us of them for the purposes of viewing us a 'waste' if we are put into the ground without giving up organs. No sane individual would baulk at seeing less people on waiting lists and more people living happy, fruitful lives. Yet, the method of getting here must be ethically sound. Hence, the government should not cut corners and fully consult the Behavioural Insights Team on how to fulfil their policies without infringing on the consent of those they govern.

We hope the government reforms this law to remove this legal, social, and philosophical problem before it creates a lasting change with our relations of the state for the worse.

Max Marlow is a past ASI intern and current President of the LSE Hayek Society