The concept of consent can be a tricky one. At its simplest, the noun means “permission for something to happen” or “agreement to do something,” as in “I need consent before I can wear the hat.” The verb means “give permission for something to happen:” “I consent to wear the hat.”
But it doesn’t stay simple for long. Is the consent informed? For example, do I understand the implications and consequences of wearing the hat when I say I will do so? Is it specific: Am I consenting to wear a particular hat or a hat more generally? Is it explicit or implicit: Have I said I will wear the hat or have I implied I will by saying that I like it? Or, has my consent been deemed: Do others think I consent to wear the hat because I have worn it before?
Consent is a serious issue when it arises, not in the context of whether or not I will wear a hat, but in the context of sexual violence. Without consent, any kind of sexual contact is, in Canadian criminal law, a sexual assault. However, the courts have not done a very good job of understanding that consent must be informed (if I am too intoxicated to understand what I am consenting to, it is not consent), specific (I can consent to one type of sexual activity and not another), explicit (the absence of non-consent is not the same as consent) and cannot be deemed (just because I wanted to engage in sexual activity with someone another time does not mean I am consenting this time).
The same is true in situations of intimate partner abuse. Just because a woman does not call the police or leave an abusive partner does not mean she is consenting to the abuse.
In other words, consent should be active, informed and in the moment.
However, as a recently passed law in Nova Scotia illustrates, there may be at least one situation in which deemed consent is a good thing. In January, the province became the first jurisdiction in North America to institute a system of opt-out organ donor legislation.
As government spokesperson, Maria MacInnes, says:
“The new law, based on the premise of deemed consent, means if you don’t register a decision and a donation opportunity occurs you will be considered as if you consented to donation after death.”
In other words, unless a Nova Scotian explicitly and specifically indicates that they do not want their organs to be donated after they die, it will be assumed that they do. Newcomers to the province, people who live there only part-time, those who lack capacity to make such a decision and anyone under 19 are excluded from this opt-out approach.
Organ donation is the responsibility of the not-for-profit Canadian Blood Services (CBS). According to CBS, only about 1 to 2% of deaths happen in circumstances that allow for a transplant to take place (one donor can save up to eight lives), so there is always a greater need for organs than there is supply.
While the procedures from one province or territory to another are somewhat different, other than Nova Scotia, all require prior signed consent from the potential donor. In Ontario, for example, anyone wishing to donate their organs after they die must complete a Gift of Life Consent Form, on which they indicate whether they wish their donation to be for transplant purposes only or if it can also be for research use. People can also indicate if they wish to donate specific organs. The information is then placed on the individual’s health card, where two letters appear beside the person’s health number and the word “donor” appears on the back of the card along with a code indicating their choices.
Hiccups in the process can occur even when the person who has died has filled out the proper paperwork. While there is no provision in provincial legislation allowing family members to override someone’s wish to donate their organs, 2016 research indicated that many health authorities across the country will defer to the family’s wishes, even if they conflict with the individual’s consent. This stopped approximately 20% of organ donations – already consented to by the donor – from happening. While the practice of deferring to the family’s wishes is no doubt rooted in compassion for people grieving the death of someone they love, the result is that other people die because they are not able to receive a much-needed organ.
There are many reasons people don’t sign on to donate their organs after they die. Some forget to fill in the paperwork, others think that telling a family member or their doctor does the trick. Many people don’t like thinking about or planning for their (inevitable) death. For some, it is a lack of trust in the medical system, often made worse by watching television medical dramas that leave them worried their death may be hastened if there is a need for their organs or their organs will be sold on the black market (both common TV themes). Some don’t want to sign a donor consent form because they don’t want their organs going to an undeserving recipient (a smoker who needs a new heart or lung, a heavy drinker who needs a liver). Others have religious or spiritual beliefs that the afterlife has a bodily integrity entry requirement.
I am not a religious person, my beliefs do not include any kind of life after death and, while I don’t trust the medical system to get everything right, I am confident that I am not going to be killed in the hospital so my organs can be sold on the black market so, for me, the issue of organ donation is straightforward. I have completed the required paperwork, discussed my wishes with my family and friends, and trust that when I die, should any of my previously and not so gently used organs be of use, they will be properly removed and passed on to someone else to enjoy.
The Nova Scotia legislation is a good thing. Other provinces and territories should follow suit. As one supporter of organ donation said:
“You are a piece of the puzzle of someone else’s life. You may never know where you fit, but others will fill the holes in their lives with pieces of you.”