According to this BMJ article, in many countries that have a presumed organ donation policy, the family can override person's decision related to donating his/her organs:

(..) although Spain is often said to have a presumed consent system, in practice, the requirement to make sure people haven’t (at some point) expressed a desire to opt-out means that the deceased’s family is always asked for consent, and if they refuse then this is always respected.

In fact, almost all countries with presumed consent systems adopt a similar (sometimes called ‘soft opt-out’) system whereby family members are always approached to confirm that the deceased would not object to their organs being donated. This creates the opportunity for ‘family overrule,’ even where an individual has expressly signed up to be an organ donor. Rarely do countries adopt a system where the family has no right to overrule the presumed or declared wishes of a donor (Austria is one such exception).

Double checking with the family makes sense when purely using presumed consent. But I do not understand the rationale behind allowing them to overrule an explicitly declared wish.

Question: What is the reason for organ donation "soft opt-out" even if the person has explicitly allowed organ donation?


To turn this around, ask who has the right to allow organ donation. The dead person cannot have any rights, as they are dead. A dead person cannot have opinions or rights. A dead person cannot own property, not even their own body. The only people who are alive and can be said to have a moral right to make decisions regarding the body are the family of the deceased. On death, the body becomes the property of the next of kin, and so they have rights.

Most people would think that the family should honour the wishes of the deceased, but they don't have to. To ignore the family would mean, for example, telling a grieving mother that the doctors will remove organs from her brain-dead son, explicitly overruling her wishes. Most families will allow organ donation, especially when they find that the deceased had requested it. But to force this on a family is a moral step too far for many.

So legally, the dead person doesn't own their body, the family does. Morally, forcibly taking a body from a family that clearly oppose donation is not acceptable to many.

The situation is exactly the same as, for example requests concerning burial or cremation, or probate. A family does not have to accede to a person's wish for burial, if (for example) the cost of burial is too great for the family to bear. Probate is, of course, a large complex area of law. But generally the executioners of the will try to act according to the wishes of the deceased, but while a will might say "don't sell the family silver" there is no way that this can be enforced, and the person inheriting the silver can choose to ignore the wishes of the deceased.

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    How is it forced on the family if the deceased agreed with it back when they were alive? – JJJ Sep 21 '18 at 17:19
  • Because the person is now dead., I'l expand a little. – James K Sep 21 '18 at 17:32
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    I don't see the point. I don't think that argument holds for other things, like a last will, e.g. being buried or cremated. Why do you think this is different? – JJJ Sep 21 '18 at 17:38
  • I think it is the same as interment options. The wishes of the dead person can be known, but aren't binding. Even in wills, for which there is much more time to consider the wishes and a very long tradition of law, not everything the dead person wishes can be forced on the family. – James K Sep 21 '18 at 17:47
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    I doubt the dead body becomes property of anyone. Do you have any laws or case law where this was ruled as such? – Fizz Sep 21 '18 at 23:07

It's probably some sort of political compromise. Organ donation is defined and regulated by law (in many countries).

Those in favour of organ donation will want to have many donors, so those needing an organ are more likely to get it. Those opposed to it want to put in certain restrictions or controls. If those in favour don't have enough votes to pass the legislation they want, they have to compromise with some of those opposing.


Many organs are donated after brain death but before heart death. I.e. for many organs, once the person's heart stops beating, the organ is no longer usable except within a very short period of time.

The real question that they are asking then is not, "Can we harvest your loved one's organs?" The real question is, "Can we give up on your loved one waking up?" Or more harshly stated, "Can we kill your loved one?" Note: I understand that brain dead is dead--I'm saying that that is not necessarily obvious to the family. And as a general rule, the family is in charge as long as the person is nominally alive.

Example source.

Another issue would be that if the donor's family delays the organ removal for even a short period of time after death, the organs will no longer be usable. It is much easier for everyone if the family agrees.

The television show Three Rivers followed a transplant team and covered many of the challenges that they face. For example, they had their own plane so that they could fly out to remove organs and bring them back to their hospital without being subject to other flying schedules. That was all part and parcel of keeping to the physical schedule required.

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    One point to mention is that "nominally alive" depends of the medical certification. If the doctors declare a person dead when he is "brain dead" (Disclaimer: I do not know the criteria) and sign the certificate, that person is no longer "nominally alive". – SJuan76 Sep 23 '18 at 11:10

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