Recently published on SSRN:
ANNE-MAREE FARRELL, La Trobe Law School
This paper examines the use of nudge strategies in organ donation, against a background of persisting organ shortage. This is a complex and contested area of public policy, in which a range of competing values, beliefs and preferences, as well as stakeholder and political demands, must be taken into account. In the UK, the need for policy-makers to tread warily in this area has been exacerbated by the historical legacy of the organ retention scandal of the early 2000s. As a result, maintaining public trust in the legitimacy of the organ donation and transplantation system must be paramount. The legitimacy of nudges was assessed by reference to function, values-based and democratic criteria. Analysis of the normative claims made about nudges revealed that such criteria were not fulfilled. In addition, findings from experimental studies showed that nudge interventions were likely at best to offer a short-term effect with regards to increasing organ donation registration rates. How this might translate into actual donation of organs after death or successful organ transplants, is currently unknown. While nudges may provide some evidence of an individual’s wish to donate organs after their death, they are largely insensitive to the difficult and often fraught context in which families are asked to consent to such donation. One of the more interesting findings from one of the studies was the importance people attached to reciprocity in motivating them to register as organ donors. This raises the question as to whether policy-makers should focus more on developing a suitable reciprocity model to encourage human tissue donation in the UK, rather than continuing to rely on altruistic intent as embodied in the gift relationship.
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