Health Law Blog

Presumed consent with organ donation is a dangerous step beyond informed consent

January 27, 2021

A recent decision by the Nova Scotia government to automatically make almost every adult in the province an organ donor will benefit those who need a life-saving transplant. But it raises important questions about our autonomy if the government has a right to our bodies after our death.

As our previous Prime Minister Pierre Trudeau said in 1967, speaking then as Justice Minister, “[t]here is no place for the state in the bedrooms of the nation,” but now the state is presuming its right to our organs.

The Maritime province is the first jurisdiction in North America to implement presumed consent for organ donation. Under the Human Organ and Tissue Donation Act, all N.S. adults with capacity will be considered potential organ donors unless they proactively opt out.

This Act seems commendable at first glance, as it could result in more organ donations. But at the same time, the idea of the government automatically taking control of our bodies is something straight out of “The Handmaid’s Tale.”

This omnipotent level of government control is something requiring discussion. Whether the motives behind this Act are for the greater good is not the issue: increased government control over our bodies is a concern for all Canadians.

The law is that consent must be informed. This means that consent is only obtained after 1) the patient has been provided with sufficient information to evaluate the risks and benefits of the proposed treatment, 2) other available options are discussed with the patient, 3) and the patient understands. Without these criteria, you have not obtained informed consent, and touching the patient without informed consent is considered battery.

Presumed consent is a contradiction of the principle of informed consent. Of course, though, we cannot obtain consent from a dead body. Further, it is the living person that has legal rights, not the unborn or deceased. However, it is not difficult to imagine the concerns of family members, in particular, in this scenario. It highlights the importance of individuals leaving proper instructions prior to death.

This is arguably a precarious time to be fundamentally changing the law on consent in healthcare, as our province and country grapples with COVID-19. Of course, that raises issues about the greater public good. But it is also not in the interests of the greater public good in a democracy to play fast and loose with the concept of consent in health care, particularly in times of fear and uncertainty.

This proposal comes at the same time as discussions in Ontario that doctors be permitted to withdraw consent for a patient on life support.

Changing requirements of consent is not small. These are changes to the law that protects our autonomy in a free and democratic society.

Before we make draconian changes to the law of consent, have we truly exhausted all of the alternatives? For example, in the context of COVID-19, perhaps the order being requested from the government should instead be for a change in criteria (namely, pertaining to prognosis) to either be entitled to life support in the first place or be entitled to stay on life support past a certain prognosis, on our publicly funded health-care system in a pandemic. This would meet the same objective; our resources would go to ensuring the greatest chance of survival for the greatest number of people. The conversation shifts from whether doctors should be able to withdraw or presume consent, to the question of what is the definition of “medically necessary” in the context of life support or an ICU bed in a pandemic. We can answer that question without changing the law on consent.

I am in no way advocating for triaging sick patients. Instead, I am suggesting that since we are in a pandemic with a publicly funded health-care system, if we are going to make a special exception under the law, shouldn’t that special exception be in practical terms, and not in the context of changing our fundamental legal principles?

Before our society advocates for the government to change the law of consent, perhaps we should consider and exhaust all of the other options to increase organ donation or ensure our ICUs can save the greatest number of lives.


Tracey is a remarkably gifted lawyer, specializing in health law. Not only is she extremely knowledgeable in her field, but she drills down with such precision and persistence, doing everything possible on behalf of her clients. She is also highly sensitive to privacy concerns, giving the utmost respect to any issues relating to the protection of health-related data. It is always a pleasure to work with Tracey!

Ann Cavoukian, Ph.D., Commissioner, Information and Privacy Commissioner of Ontario

Tracey Tremayne-Lloyd Health Law