Mandated Choice

Mandated Choice

There is another option, which is to require everyone to declare whether they want to be an organ donor. Whether it is actually feasible to require this of everyone will vary from one country to another. In the United States, there is no obvious way to reach everyone, because not everyone has a driver’s license or a passport. Nevertheless, one could use a mandate instead of a request when asking those applying for a driver’s license. The plan could be implemented more universally in countries where everyone is required to have a national ID card that is renewed reasonably often. (This is not the sort of question to which an answer given at age eighteen should be considered final.) If the goal is to save lives, mandated choice might seem to be a bit better than prompted choice because more people will register a choice, and from the standpoint of protecting the rights of Potential Donors and Families, it might seem at least as good. Is it?

To answer that question, we need to ask another one: What is the difference between prompted choice and mandated choice? The difference is a subtle one, and in fact, what we call prompted choice has long been called mandated choice in the organ donation literature, causing considerable confusion. So let’s try to be clear. Suppose the driver’s license application is administered online. If a response to the organ donation question is required, then the application will not be considered finished unless this question is answered. If it is merely prompted, then people can simply choose not to answer.* That is a plus because the failure to register is not a no to donation. It is no decision. This allows us to ask the family at death. There are people who want their family to decide, especially in certain cultures. If we force a yes or no to donation then we eliminate one of the best aspects of an opt-in choice architecture, which allows two pathways to a yes.

Which is better, a mandate or a prompt? The answer is not obvious. A mandate might be warranted if people are not paying enough attention to this question, but that could also be accomplished with just a reminder, such as “You did not answer the organ donation question. Would you like to do so before completing?”

As libertarian paternalists, we try to resist imposing mandates when we can, and in this case, we see some solid reasons to oppose it. For one thing, there is some evidence that mandated choice can backfire, which is to say that from the standpoint of saving lives, it might be inferior to prompted choice. When Texas implemented a mandated choice system, only 20 percent of citizens agreed to be donors.18 Virginia had a similar, if less drastic, outcome, obtaining just a 31 percent sign-up.19 And there is also experimental evidence from economists Judd Kessler and Alvin Roth that fewer people agree to join if the choice is forced. Their conclusion is well summarized by the title of their paper: “Don’t Take ‘No’ for an Answer.” 20

Citizen backlash is another reason we prefer the kind of prompted choice that has been adopted in most states. People who chose not to answer the question are not recorded as organ donors but are still issued their driver’s license. Also, these states keep track only of people who have opted in, not those who have opted out. It is a registry of donors, not donation decisions—an important distinction. That raises an interesting question about mandated choice. Would answers of no be officially recorded? It seems like that would be a logical implication of the mandate, and if so, that information would be considered a legal refusal under the law and therefore be shared with Families. Keeping a registry of those who do not wish to be donors would almost certainly decrease donations.

If mandating choices saved lives, that would surely be a strong point in its favor, but we think the evidence suggests that prompting should be preferred to mandating in this context.