Should silence mean yes?

In many countries, more people need an organ than there are donors. Several governments have answered by changing the default (1). Wales introduced an opt-out system (2) for organ donation in December 2015, and England followed on 20 May 2020: adults are now considered willing to donate after death unless they have registered a refusal or belong to an excluded group. France, too, treats everyone as a donor unless they have expressed a refusal during their lifetime. In all three cases, the law no longer waits for a yes; it waits for a no.

Supporters begin with a point about human nature. Many people say they favour donation yet never get round to registering a decision. A default that follows the wish of the majority, they argue, saves lives at little cost to anyone, since those who object can opt out at any moment. Time, they add, is against everyone: organs can be used only within a limited period after death, and doubt about a person's wishes can mean a lost opportunity.

Critics answer that silence is not consent. The gift of one's body is the most personal decision there is, and to turn it into a default risks treating bodies as public property. Opting out takes effort and information, which the poor or the poorly informed may lack. There is also a gap between the law and the hospital. In England and in France alike, relatives are still consulted, so that the presumption often depends on what a grieving family decides to say.

Whether the change works is less clear than its champions suggest. A review of the research, published in 2009, concluded that presumed consent alone is unlikely to explain differences in donation rates between countries. The organisation of transplant services, wealth, investment in health care and public attitudes may all play a part. Spain, often held up as a model, built its results largely on a network of transplant coordinators in hospitals, who identify possible donors and talk with their families.

A change in the law can still have a symbolic effect. By debating donation openly, a country reminds its citizens to take a decision, and to say it aloud. Families who know the wishes of a loved one are better able to respect them at the worst moment of their lives. Perhaps the conversation matters more than the form.

The default is one lever among others, not a miracle. A fair system respects the right to refuse, makes refusal easy and visible, and invests in hospitals as well as in rules. Silence should not be the only language that a donation policy speaks.