This is an excerpt on aff case ideas from Danny Debois’ topic analysis for the Sept-Oct LD Victory Briefs. To read Danny’s views on interpreting the resolution and on negative arguments (including counterplans), order now!
Danny (Harvard ’18) debated for Harrison High School in New York for 4 years. He won the TOC, NCFL Grand Nationals, Glenbrooks, and the Harvard Invitational (twice). He is now an assistant coach at Harvard-Westlake in California.
The most common aff argument in the literature is definitely that presumed consent legislation is an effective method of addressing the organ shortage crisis. In 2011, 113,555 people in the United States were on a waitlist for a life-saving organ transplant.1 Many of those individuals have died or will die because of a lack of such organs.
Proponents of opt-out systems argue that by shifting the burden structure so that people have to opt-out instead of opt-in, many of the people who would have wanted to be organ donors but never got around to signing up will now be eligible for organ procurement. As Law Professor David Orentlicher notes,
According to conservative estimates, roughly twice as many organs would be available each year if consent to donation were obtained for every person who dies and whose organs are viable for transplantation. Many of these persons would have wanted to donate their organs, but consent was not obtained. People often do not consider the question of posthumous donation while still alive, physicians may fail to ask family members for surrogate consent, or family members withhold consent to donation even when the dead person would have preferred to be a donor. … Under a presumed consent regime, the state would assume that a dead person has consented to the posthumous donation of organs unless an objection has been lodged either by the person while alive or by a family member after the person’s death. Such a presumption would reverse the law’s existing presumption. … Instead of placing the burden on health care professionals to obtain consent, the burden would be on individuals and their families to document their objections.2
Opt-out systems have shown to be effective in addressing this problem. The literature frequently refers to Alberto Abadie and Sebastien Gay’s 2005 cross-country comparison of 22 countries, which concluded that presumed consent legislation can increase organ donation rates by 25-30%.3
The advantage to a position about addressing the organ shortage problem is that, while it’s very predictable, it’s also very hard to substantively contest, as much of the literature on this issue flows aff. In terms of neg responses, the two most common arguments in the literature seem to be first, authors that argue presumed consent legislation is unnecessary in resolving the organ shortage problem, and countries like Spain have high organ donation rates because of other factors. However, these arguments only function as either mitigatory defense or noncompetitive counterplans, and it still seems like presumed consent legislation in addition to alternatives will be the most effective solution (i.e., you can easily make a permutation, and say we can do both policies). Secondly, some authors have argued that presumed consent legislation will increase public mistrust of doctors authority, one reason being that people feel doctors won’t treat them in emergencies so they can take their organs. Thus, people will overall be less trusting of the medical system and will not donate their organs. However, these arguments are most commonly referred to in passing in the literature, and don’t seem to have the strongest empirical support. These arguments also have a uniqueness problem, since the people likely to mistrust presumed consent probably already mistrust the medical system. The neg won’t have a big enough link to this disadvantage to be able to outweigh the aff’s 25-30% solvency figure.
While this argument would clearly work under a utilitarian framework, I’d encourage debaters to try to find a different framework where these impacts are relevant. Since the contention is very hard to address without smart thinking and developed research, most lazy negatives will just dump on the util framework and read an autonomy negative. It seems like the impacts to life that aff generates could be relevant under communitarianism, Gewirth’s principle of generic consistency, and other frameworks.
While seemingly counter-intuitive, there are many aff authors who argue that presumed consent legislation is actually likelier to protect autonomy. The argument is similar to a criticism of the act-omission distinction. Given that the majority of people have said they’d be willing to donate their organs (some polls have documented that figure at around 70%) but much fewer people actually sign up to become organ donors, a negative world is likelier to disrespect the wishes of the deceased who wanted to be organ donors but never gave explicit consent. Additionally, since the amount of people who want to be organ donors is larger than the amount of people who object, and since people who object for religious or moral reasons are likelier to be more vocal about their objections than those who want to donate their organs, an “opt-out” organ donation system is likelier to make fewer mistakes in how they treat the deceased than an “opt-in” system. Philosophy Professor Michael Gill takes this position, stating in the thesis of his article,
“I argue that while removing organs from the bodies of people who did not want them removed is unfortunate, it is morally no worse that not removing organs from the bodies of people who did want them removed, and that a policy of presumed consent will produce fewer of these unfortunate results than the current system.”4
This position has the advantage of preemptively turning the most common negative autonomy arguments, however, it seems slightly counter-intuitive and harder to explain that the organ shortage argument. Regardless of whether you write a case based on this argument, you should definitely find cards for this argument to read in the 1AR as turns against autonomy NCs.
I think a simple, reasonable aff could present the topic as a conflict between the rights of the patients who need life-saving organ transplants, and the rights of the deceased who have not explicitly given or denied consent for organ procurement. Two reasons why the rights of patients come first are: first, the rights of the living outweigh the rights of the deceased in general. A person’s life seems to be more important than an individual/family’s religious or personal reasons to object to organ procurement from a decedent. Secondly, the topic is about presumed consent, meaning people who clearly express their objections aren’t at risk. It seems like there’s a rights forfeiture argument that you could make—if you don’t express your views, you don’t have a right to complain when those views aren’t respected. By analogy, if you didn’t vote in the 2004 presidential election, you don’t have a right to complain about Bush being president.
These arguments, even if not run as contention level arguments, could also be run as topic-specific framework reasons to prefer a saving lives framework to an autonomy negative, since the lives the affirmative saves are more important than the autonomy the negative protects.
- Rodriguez, No Means No, But Silence Means Yes? The Policy and Constitutionality of the Recent State Proposals for Opt-Out Organ Donation Laws.↩
- David Orentlicher [Samuel R. Rosen Professor of Law, Indiana University School of Law-Indianapolis; Adjunct Professor, Indiana University School of Medicine. J.D., Harvard Law School, 1986; M.D., Harvard Medical School, 1981.] PRESUMED CONSENT TO ORGAN DONATION: ITS RISE AND FALL IN THE UNITED STATES. Rutgers Law Review. Vol 61:2. 2009.↩
- Alberto Abadie [Harvard University and NBER], Sebastien Gay [University of Chicago]. The Impact of Presumed Consent Legislation on Cadaveric Organ Donation: A Cross Country Study. December 2005.↩
- Michael Gill [Universtiy of Arizona, Tucson Philosophy Professor]. Presumed Consent, Autonomy, and Organ Donation. Journal of Medicine and Philosophy 2004, Vol. 29, No. 1, pp. 37–59.↩