The problem

It's often called the gift of life. Someone dies on an operating table, relatives are consulted, and the still pristine organs are harvested, to be rushed to waiting surgical facilities, perhaps halfway across the continent, and inserted into the bodies of needy recipients. That's assuming, of course, the dead person's wishes are known in advance.

For over a decade, Canada's organ donation rate has hovered at 14 per million people, one of the lowest in the western world. What's more, it has remained stuck at this level as the need for transplantable organs — kidneys, livers, hearts, lungs, corneas — is shooting up dramatically because of an aging society.

Last year, just over 4,000 Canadians languished on transplant lists, waiting for a suitable donor. About 225 died waiting. And these are just the official numbers. When you consider that U.S., with a population roughly ten times that of Canada, has over 87,000 people waiting for transplants, it's easy to conclude that the real numbers here are probably much higher.

The proposed solution

It's called presumed consent and has been around since the late 1980s in several European countries. Spain is often cited as the model to shoot for: It's a presumed consent country and its organ donation rate, nearly 34 per million, is more than double what it is here.

When it comes to organ donations, Canada, Britain and the U.S. operate under a system called informed consent: Would-be donors must sign some sort of donation card — often on the back of their driver's licence — to signal their wishes. And even then, unless this is accompanied by a formal legal document, families have the last word.

Presumed consent works a little differently. At death, everyone is considered a potential donor unless they have specifically said somehow beforehand that they don't want to donate. In the harder version, in Austria, family members can't object to organs being taken from a dead loved one. (Austria is said to have virtually no waiting list at all for such procedures as kidney transplants.)

In the so-called soft consent version (Spain's), families can still say no, but the onus of the decision, proponents say, subtly shifts—everyone is doing it, right?—making it harder to object.

This is the policy Ontario is now considering, hoping to spark a national debate. At the moment it is only in the form of a private member's bill from the NDP's Peter Kormos. But Liberal Health Minister George Smitherman says he is in favour. And because Kormos is something of a human bullhorn —"We wouldn't think of throwing out an appliance that we were upgrading in our house, why are we burying or burning good organs every day?" he asks—the notion is bound to get a good airing.

• CBC STORY: 'Presumed consent' option for organ donations sparks debate
• INDEPTH: Organ donation

The problem with the solution

There is nothing wrong with presumed consent, assuming governments can sell it clearly. But when it comes to encouraging organ donation, to concentrate solely on presumed consent would be a misreading of what has happened in Spain, and of how death occurs.

Spanish physicians must still ask family members for their permission when harvesting organs for transplant. And according to studies, between 20 and 24 per cent routinely refuse. However, in a study of 200 families who had initially refused, nearly 80 per cent ending up changing their mind after specially trained staff explained the process to them in detail.

This is the key to what Spain has accomplished. Beyond consent, it created teams of transplant co-ordinators in 139 intensive care units to counsel families and organize the extraction of organs so it can be done efficiently and with respect. Conveying this efficiency— and the purpose behind it—is probably the main reasons this program has been so successful.

Consider that Sweden is a presumed consent country but its donor rates are as bad as Canada's. California, on the other hand, is an informed consent jurisdiction and its rates are closer to Spain's. That's because California hospitals have followed Spain and implemented transplant co-ordination teams, as Ontario and Alberta are just beginning to do in a handful of institutions.

Understanding death

Creating a Spanish-style transplant team, however, is not cheap. Transplants themselves are incredibly labour intensive. Add to that special staff for dealing with families and co-ordinating the extraction and maintenance of vital organs and this is an area that would just gobble up new resources.

Also, one of the reasons Canada's donor rate is so low is that relatively few cadavers are suitable donors. If you die of a heart attack at home, or even in the ambulance on the way to hospital, there is often too much internal decay in the central organs to make their extraction worthwhile. (For them, only certain tissues, bones, heart valves or corneas can be harvested.)

The best donors, if that term can be used, are those who die of stroke or severe head injuries and whose bodies have been kept alive on ventilators in hospitals. Brain death is something that can be scientifically documented. So there is no need for families to have to make decisions about pulling the plug.

But there will never be enough of these injuries to satisfy transplant needs which is why living donors are now considered (for kidneys, and portions of livers and lungs). As well, in recent years most institutions have broadened the definition of potential donors to include those on life support for conditions other than brain injuries. These are the kinds of decisions—when to withdraw support— that are enormously difficult for families to make anyway. Presuming on such a moment is never going to be easy.

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