WODC: Organ Procurement and Just Societies
This debate is for Larz's World Online Debate Cup Tournament. I thank Arc for this opportunity to debate him and I look forward to an excellent round. Also, there is a 1,500 minimum ELO required to vote on this debate.
A just society ought to presume consent for organ procurement from the deceased.
Ought - Morally Desirable
Presume - to accept legally or officially that something is true until it is proved [or shown] not true 
Consent - to give assent or approval 
Organ - a differentiated structure (as a heart or kidney) consisting of cells and tissues and performing some specific function in an organism 
Procure - to get possession of: obtain by particular care and effort 
Deceased - no longer living 
Just - treating people in a way that is considered morally right 
Society - the people of a particular country, area, time, etc., thought of especially as an organized community 
We will assume that a just society is just on balance, as no society can be perfectly moral.
1. No forfeits
2. Any citations or foot/endnotes must be provided in the text of the debate
3. No new arguments in the final round
4. Maintain a civil and decorous atmosphere
5. Violation of any of these rules or of any of the R1 set-up merits a loss
R5: Rebuttals and Closings
Here is some background on organ donation if you're interested.  This is also the September/October LD topic, so it should allow me to test some arguments. 
...again to Arc, and I await his acceptance :)
I extend my thanks to both Larz and Arc for making this debate and tournament possible. At this point, I will present my case.
P1: "Presumed consent" isn't the same as "no consent"
"Under a system of 'opting out' or 'presumed consent,' every person living in that country is deemed to have given their consent to organ donation unless they have specifically 'opted out' by recording in writing their unwillingness to give organs.""  Presumption implies that something is assumed until declared otherwise; thus, people are still free to opt-out of organ procurement in the Pro world.
P2: An opt-out program will likely have higher rates of participation than an opt-in program; this is evidenced empirically.
"In the United States, 85 percent of Americans say they approve of organ donation, but only 28 percent give their consent to be donors by signing a donor card. The difference means that far more Americans die awaiting transplants. But psychologists Eric J. Johnson, a professor at Columbia University Business School, and Daniel Goldstein, formerly at Yahoo and now a principal researcher at Microsoft Research, found in a 2003 study that in many European countries, individuals are automatically organ donors unless they opt not to be--organ donation is the default choice. In most of these countries, fewer than 1 percent of citizens opt out.""  "For example, Germany, which uses an opt-in system, has an organ donation consent rate of 12% among its population, while Austria, a country with a very similar culture and economic development, but which uses an opt-out system, has a consent rate of 99.98%." 
CN1: The framework's first conclusion.
We can sum up the overall gist of P1 and P3 very nicely with the following quote: "Here we have preserved freedom of choice but by altering the default options we have made a significant difference in the social outcomes."  An opt out program still allows for individuals to decline to participate (thus preserving freedom of choice) but it increases the number of participants in organ donation, thus helping those thousands of people desperately in need of an organ maintain a good quality of life, and, even more fundamentally, remain alive.
P3: Prefer utility as a means of weighing the round.
In a society, there are going to be people with competing moral views. Take for example the clash in the U.S. between Conservative Christians and Liberals, as epitomized in their disagreements over abortion, evolution being taught in schools, and contraceptive healthcare, etc. The government of this society must come to policy decisions on a range of such controversial issues, and must find a fair and legitimate way to make those calls. It would not be fair or impartial for a government to prefer one more view over the other (e.g. taking the Conservative Christian stance) because this sidelines and relegates a large segment of the population whose voices deserve to be heard. Policymakers also have an inherent duty to maximize the public interest as trustees of the state, and thus they cannot justify policy tradeoffs in any philosophical since. Therefore, we must default to a cost-benefit system as a means for government decision-making because it does not prioritize the moral values of any single group over any other, but rather it evaluates all groups equally.
CN2: The framework's second conclusion.
Because a government must operate from a utilitarian POV, it must assess what policies will have the best outcomes for society and implement them. Therefore, if I can show that an opt-out program is more utilitarian than and opt-in program (this is the dichotomy the resolution is--in effect--setting up) I have won the round.
C1: Organs Save Lives
"As of June 21, 2013, there are 118,617 people waiting for life-saving organ transplants in the U.S. Of these, 96,645 await kidney transplants. While views of organ donation are positive there is a large gap between the numbers of registered donors compared to those awaiting organ donations on a global level."  "Over 100,000 Americans are on the waiting list in need of an organ. This crisis within the United States is growing rapidly because on average there are only 30,000 transplants performed each year. More than 6,000 people die each year from lack of a donor organ, an average of 19 people a day. Between the years 1988 and 2006 the number of transplants doubled, but the number of patients waiting for an organ grew six times as large. It has been estimated that the number of organs donated would double if every person with suitable organs decided to donate."  About 4,000 people are added to waiting lists for organ each day, and most available organs come from deceased donors vice living ones--making the question of deceased organ extraction all the more critical. 
Let's do some simple math. There are approximately 120,000 people in need of life-saving organs. Approximately 30,000 transplants occur annually. The number of organs donated could double if everyone with suitable organs participated; if we say that the number of donated organs roughly correlates with the number of transplants (though I'm reasonably sure more organs are donated than transplants occur each year), we could increase the number of transplants to 60,000. While certainly not precise, as transplants and donations are not the same things, this seems a fair estimate of the possible scope of the impact. This would mean that instead of saving 25% of those in need of organs, we could save 50%. Surely, that is the utilitarian thing to do--to save more, not fewer lives.
C2: The Black Market
In fact, an opt-out system would depress the black market trade in organs by making more organs available to the needy public. An opt-out system "would make a big difference to the number of organs available and reduce the demand on the black market. It will also reduce the exploitation of poor people who sell their organs and endanger their health because they are desperate for money.”  "In so far as those who donate organs are often impoverished and those who can afford black market organs are typically well-off, it would appear that there is an imbalance in the trade. In many cases, those in need of organs are put on waiting lists for legal organs for indeterminate lengths of time--many die while still on a waiting list...A consequence of the black market for organs has been a number of cases and suspected cases of organ theft, including murder for the purposes of organ theft." 
Thus, there are real and tangible reasons to affirm today's resolution from a utilitarian standpoint. But, there are perhaps other reasons to vote Pro on this topic.
C3: The Rights of the Dead vs. The Rights of the Living
Ultimately, the end-goal of a right is to protect the interest(s) of a right-holder. If I have a right to bodily integrity, it is because I have a vested and justified interest in preserving my body's wellbeing. I can be harmed, and therefore I require protection against possible harms; rights function as those protections. Yet, a dead man cannot be harmed in any physical sense--in fact, it could be asserted that he cannot be harmed at all. What impact does it have on him if his organs are removed? Since he is dead, he no longer has an interest in his bodily integrity since his reason for that interest (a desire to stay alive and a desire to be healthy) are gone. Whereas, a living person still has an interest in their health and wellbeing the assure them a right to their health and wellbeing--a right recognized in such documents as the UDHR (article 25).  Therefore, the supposed rights of a deceased should not trump the rights of a living person, as the latters interest is far more important that the formers, and as the latter as a better claim to the organs from a rights POV than the former.
Thus, we can also affirm the resolution from a rights-based perspective. However, this contention is ancillary to the foregoing arguments, as--of course--we are preferring a utilitarian weigh mechanism in this round.
CN3: Overall Conclusion
"A system of presumed consent for organ donation--where people have to opt out of donating their organs when they die--is the best way to tackle a growing waiting list for transplant."  An opt-out system not only retains freedom of choice, a basic right to which we are all entitled, but it does so in a way that maximizes a society's ability to save lives and reduce criminal activity. Sure, this is the goal of a just society--to protect people's rights to life and liberty as best as it can. Optimizing organ donating programs therefore requires that the system be an opt-out vice and opt-in, as the former comes with myriad benefits that the latter simply doesn't entail. It is the utilitarian and the just solution to a grave problem. With that, I urge a Pro ballot.
1 - http://www.organdonation.nhs.uk...
2 - http://www.psychologicalscience.org...
3 - http://en.wikipedia.org...
4 - http://circleofinsight.wordpress.com...
5 - http://www.webmd.com...
6 - http://www.sciencedaily.com...
7 - http://www.un.org...
Thanks again to Larz for beginning this tournament and for Arc for what I am sure will be a fabulous debate. I now hand the proverbial reigns over to Con...
I want to thank all the readers, voters, bsh1 for choosing a really interesting topic and Larz for making this tournament.
I also want to apologize for the huge delay for posting this round, I was really busy.
I know we have little time to debate so I promise I will be posting the next rounds after 3 to 12 hours after bsh1 posts his. It will depend mainly if I'm sleeping or not.
Because of the rules I will present my case in this round.
Opt out vs other systems
I want to clarify something before I present my arguments. This is not a opt out vs opt in debate.
The resolution says "A just society ought to presume consent for organ procurement from the deceased".
This means that Pro is advocating for an Opt out system but he is not mentioning a rival system anywhere, so I can pick any system I want that doesn't presume consent, even if it-s not an Opt In one.
I believe that a just society ought to use a "mandated choice" system and do not make assumptions about the choices of the citizens.
I will present y arguments against the presumed consent or Opt out system and then I will present my arguments for Mandated choice system.
Arguments against Presumed Consent (PC)
1. PC is not consistent with what we consider just.
There is a reason we don't presume consent for a lot of activities. We consider just to be asked about our choices before making assumptions about them that could affect our rights or our wishes and specially before an invasive procedure. Not making assumptions about our choices is just even if those assumptions could save lives, like in the case of a lot of other medical procedures.
Because PC is not consistent with already established moral truths, we can't think a just society would/should presume consent for organ procurement from the deceased.
2. PC and problems with rights and wishes
The position Pro is advocating in this debate has some dangers related to rights and wishes. The fact that in Pro's system, one person has to give an explicit "refusal" creates the possibility of affecting the rights and wishes of the living.
It is true that there is a difference in rights between the living and the deceased as well as the fact that only the living has wishes, but the wishes of the living may be related to what would happen with their own body after death.
The fact that Pro's system gives the option of "not donating" makes it clear that these wishes are important and we should care about them, and the fact that it is possible for the organs of a death human to be removed because he didn't "opt out" is a problem.
This problem gets worse if we talk about mentally incompetent adults that are not capable of understanding the concept of donation after death and may not be able to choose what they actually want, even though they may have wishes.
The fact that it is just to presume non-consent instead of consent in the case of mentally incompetent adults shows that PC is not near the objective of a just society.
3. PC doesn't ensure an increase in donations rate.
"The US Institute of Medicine is concerned that the introduction of presumed consent without the appropriate public support could reduce donation rates in countries where autonomy is highly prized, such as North America. People may be more likely to donate when they feel they retain control of that decision rather than the law dictating that donation should take place." 
This is an important issue because it allows us to see that there are other factors that affect the donation rates. Factors like more investment and trust and support in the system or government.
And this is exactly what happened in Brazil. 
"Brazil switched to an opt-out system and ultimately had to withdraw it because it further alienated patients who already distrusted the country's medical system." 
There are more evidence that supports this argument, but I will present them in the rebuttals because are related to Pro's arguments and this argument is starting to look like a rebuttal.
Arguments for Mandated Choice (MC)
What is Mandated Choice?
"Mandated choice, or required response, is a method of requiting competent adults to prospectively register their wishes regarding organ donation in advance of death through various registration mechanisms. " 
In other words, competent adults have to answer the question “Do you wish to be an organ donor?” and no assumptions about their wishes are made.
1. MC is just
Because it takes into account the rights and the wishes of the citizens in all the scenarios, we can think of a just society using this system.
It would not have the problems that the PC has because we are not assuming the decision and wishes of the people in any moment.
MC is also consistent with accepted moral truths related to consent.
2. MC alleviates the organ shortage
Because now the decisions of the competent adults are explicit and known, there will be more organ donors than before.
For example, "In the United States, 85 percent of Americans say they approve of organ donation, but only 28 percent give their consent to be donors by signing a donor card. " 
Because of MC, there will be 85 percent of Americans that give their consent to be donors.
And example of MC in action is the case of Illinois since 2006.
"In Illinois, a mandated choice system with multiple registration options has proven to be very successful. Illinois enacted the First-Person Consent Organ/Tissue Donor Registry on January 1, 2006." 
If we compare the almost 60% of people that consent to be donors in Illinois  with the 28% of people in the US that consent to be donors, we can see that MC causes an increment in the donation rates.
3. MC is the best of two worlds
Mandated Choice has the advantages of the Opt in and Opt out systems without the disadvantages the mentioned systems.
The reason of this is because the disadvantages of those systems are caused mainly by the fact that they are based on assumptions.
Opt in system presumes non consent and Opt out system presumes consent.
4. MC makes the decision easier and ensures autonomy
Because we are sure about the wishes the person had in most of the cases, a next of kin to make the decision is unnecessary.
This means that the wishes of the people are followed accordingly and there is no need for the doctors to ask again for the decision to the family ensuring autonomy.
This is not an issue in cases like Austria where a next of kin is not used either, but most of the countries that uses the Presumed Consent system still wait for the answer of the family in donation-after-death related issues.
-Presumed consent has too many problems related to justice.
-Mandated choice is a better system that also share the advantages of presumed consent without affecting the rights or wishes of any citizen.
-Mandated choice is preferred to be implemented by a just society.
I thank bsh1 for this debate and await for his rebuttals.
Thanks to Arc for this debate. I apologize for taking so long to post--his arguments were novel and I wanted to take time to consider them before responding. I will now address Con's case.
Con is completely correct in saying that I must defend an "opt-out" system, and that he is free to offer or defend any other system for organ procurement out there that he so desires. However, since he has chosen to offer a counterplan instead of passive negation, he has incurred an equal burden of proof in this round.
He has given voters a choice: an opt-out system (OOS) or a mandated choice system (MCS). If he cannot show that the former is the best option of the two, he cannot win this debate.
Arguments against Presumed Consent (PC)
Con's argument here is fairly straightforward: it is unjust to violate our right to choose, and PC violates this right. There are two good rebuttals to be made here: (1) PC does not actually violate the right to choose, and (2) the rights of the dead should not outweigh the rights of the living.
As to the first argument, for the right of choice to be violated, choice has to be denied. As long as you can, at the end of the day, choose whether or not your organs are harvested your right to choice has not been abridged. PC sets organ donation as a default setting--if you do nothing, your organs can be procured after your death. However, you are still free to object to this, and to say "no, I don't want my organs excised after I die." In this way, choice is preserved because you can still refuse. And, if you choose to do nothing, then you have chosen, by default, to go with the default option. Either way, you're still choosing the outcome--you can choose to object and not have your organs removed, or you can choose to do nothing and allow your organs to be removed. Your choice is still preserved.
Regarding the second point, we can refer back to my case, specifically my Contention Three. But, more than that (i.e. weighing the rights of the living vs. the rights of the dead), we can also weigh the rights themselves. Does the right to choice outweigh the right to life? I would argue that indeed, it does not. And this provides us an interesting third argument against Con's assertions here. Consider, if I choose to murder someone, I have done something wrong. I had a right to choose, but my victim had a right to life. Society and most ethicist agree that in that situation, the victim's right to live trumps the murder's right to choose and right to freedom of action. Analogously, the person in need of a life-saving organ has their right to life in jeopardy. The possible donor has their right to choice in jeopardy if Con's arguments are to be believed. When we weigh these rights, former outweighs the latter. So even if Pro's position somehow infringes the right to choice, it is still moral because the right to life takes priority.
P2. Rights and Wishes
I would simply cross-apply here much of what I just said: the right to choice is not abridged in my world.
I will take a moment to briefly discuss the mentally ill, however, as this is a unique point. The Pro advocacy is different from an opt-in system in this way. An opt-out gives people the choice not to object, or to object. An opt-in gives people the choice to agree or not to agree. Both systems require informed consent, either by proxy in some countries, or by the person themselves. The mentally ill, since they cannot provide informed consent (they cannot know whether or not they wish object), would either need a lawful proxy making such decision on their behalf or would need to be exempted. This can be done under the umbrella of an OOS. Therefore, this argument doesn't actually clash.
Again, if an agent is incapable of consenting, you cannot presume their consent. Consider, I can presume the a dog's consent for a procedure because dog's are unable to consent period. There is no consent to presume. I can however presume the consent of rational persons, because they are able to consent.
P3. Donation Rates
This is a very important argument to assess. First, since this resolution is not limited to any specific nation, but is instead question what a hypothetical "just society" would do, we should look at aggregate numbers to evaluate utilitarian impacts. In other words, Con's examples of the U.S. and Brazil are cherry-picked and don't say anything about the broader trends.
But, I would also note that regarding his U.S. example, that is largely how the program is sold and marketed. As I just pointed out, choice is still present in my world, and so if we emphasize this, we can counteract the issues Con fears may arise.
Additionally, Con's Brazil example really doesn't substantiate his claim. According to Con's own source, the reason that Brazil's policy failed was not necessarily due to the OOS, but rather due to a lack of faith in the medical sector as a whole.  Unless Con can show that his system is going to be more likely to increase faith in a broken medical system than mine, this is really a moot point. Moreover, if we improved the medical system in Brazil, there is no reason given by Con's source that OOS would not work.
Finally, Con really has no hard numbers here, and hard numbers (like those I cite) should be preferred to vague analysis since they are more easily quantified and impacted in the debate space.
Arguments for a MCS
This is clearly a non-unique point because my system also preserves choice.
P2. Organ Shortages
Firstly, please note that an OOS system reduces organ shortfalls as well--and perhaps does so more effectively than MCS. According to sources presented in my case, under an OOS system, only about 1% of people refuse to have their organs procured once they die. A good exemplar of this statistic is Austria, "which uses opt-out, [and] nearly everyone (99 percent) [donates]."  Whereas, in the Illinois example, only 60% of its population are donors.  So, we're comparing around 99% of people as donors to 60% of people as donors. Under a utilitarian calculus, we should prefer the former to the latter.
Additionally, Con only gives us 1 example of an effective MCS--Illinois. I cite studies that span multiple countries. Con's empirical evidence is therefore limited to a very small slice of the globe, making it less credible, and certainly more experimental. Other examples of MCS show less promising outcomes than those in Illinois. In Texas, for example, when MCS was instituted, "80% of drivers declined to donate."  This really undermines the thrust of what Con is claiming here--it seems as if more people are apt not to donate than donate under an MCS system--at least in Texas. In fact, just "two states that have mandated choice programs through departments of motor vehicles report relatively low numbers of pro-donation registrants compared with nondonors or undecided persons." 
P3. Best of Two Worlds
This section really advances no new arguments as this very dichotomy is the entire debate. The problems with MCS include lower donor participation rates than my world, logistic challenges such as enforcing the mandate, and more. For instance, how what happens if someone fails to choose before they die? What happens if someone refuses to choose or is undecided? What if the deceased as no living relatives or heirs and is also undecided? Do we penalize people who fail to choose? Con needs to advance reasonable answers to these logistical challenges if he is to truly show that MCS is better than OOS.
P4. Ease of Choice and Autonomy
Again, the idea that everyone will always conveniently make a decision before they die is faulty--and we need to know what would happen in an MCS in the case where no selection was made.
Really, this is point is merely a rehashing of prior assertions.
Con has failed to show that MCS is better. It has myriad unanswered logistical issues and will not maximize donation rates. OOS allows for choice while still saving more lives and harvesting more organs than MCS, and is thus the preferable world of the two. Thank you, and please look to Pro in this debate.
1 - https://en.wikipedia.org...
2 - http://www.nytimes.com...
3 - http://en.wikipedia.org...
4 - http://annals.org...
Thanks again to Arc. I believe we have agreed in the comments to "pass" on R5 in order to ensure the timely progression of the WODC Tournament; I would appreciate it if Con could confirm in this in one of his next speeches. I turn over the reigns to him at this time.
Because of the rules I will present my rebuttals for my opponent's second round only.
But first I will address the framework.
My opponents presents a framework in the second round.
I will address it, point by point.
P1: "Presumed consent" isn't the same as "no consent"
I agree. It is not the same. They differ in the opportunity to ask for the rights (if one made the decision of not donating).
But there is still a rights' problem.
The rights of the people should not start when someone ask for them.
My rights end when the rights of others start. So I have the right to make a fist until I reach the face of someone else, even if he doesn't ask me not to hit him.
P2: An opt-out program will likely have higher rates of participation than an opt-in program; this is evidenced empirically.
Here Pro claims that an opt-out program will likely be more effective than an opt-in program. This is a claim related to a comparison between
opt-out and opt-in systems. But as it's part of the core of the discussion, I will challenge this idea.
In his explanation, Pro talks about 3 countries: US, Germany and Austria and claims there is a correlation between presumed consent and a higher rate of participation.
This chart shows the donors per million population in some countries that use one system or the other in 2002. 
Notice how, even if the first 5 countries use the opt-out system, the last 6 in the chart also use that system. The correlation is not clear. Pro picked some countries that just happen to be successful with the system he is advocating.
IF we show a chart with the countries that use the opt-out system only, we can see that there is no correlation between the behavior of its citizens and the system used in the country.
And if we take the really successful case of Spain out of the chart, the differences are not significant enough. There is no such correlation, at least not with this "evidence".
This is a chart from 2008 that presents the same problem. 
This and the case of Brazil presented in the second round shows that there are other factors that can affect the rates.
So where is the problem?
The selection of countries Pro uses, which also happens in literature. Those advocating an opt-out system usually uses the same countries as example. Spain and Austria are heavily cited as successful examples of the system and claim that this correlation exist.
So the success of each country can depend on other factors.
"The social process at stake here is a very complex one, and one should be prudent when generalising about the relevance of one variable that coexists with a myriad of others. One should be even more prudent when entering the risky waters of transnational comparison." 
And it's true, this is not enough to invalidate the hypothesis of the correlation, but the examples presented by Pro are not compelling.
But there is definitely a difference. In countries (like US) where the amount of people willing to donate is higher the amount of people that expressed this will, an opt-out system would increase the rate of donations, and mandatory choice would do it too.
P3: Prefer utility as a means of weighing the round.
I think it's fine to use an utilitarian system. I'm advocating for a mandatory choice system which is in great balance from a utilitarian framework and a rights/duty framework.
C1: Organs Save Lives
I think this should be included in the framework. This is a fact. If there were more organs available for donation, then more lives would be saved.
C2: The Black Market
Then Pro uses the depression of the black market as an argument for opt-out system. This depression would be possible in countries where the rate of donations is high enough. Considering this and the fact that the debate is related to the comparison between an opt-out system and a mandatory choice system, it's important to note that this is not unique to the opt-out system.
Mandatory choice would have the same advantage in countries where the amount of people willing to donate their organs are high enough.
C3: The Rights of the Dead vs. The Rights of the Living
Here Pro explains a difference between the rights of the dead and the living and claims that because a dead person can't be hurt, it's fine to remove his organs and give them to a person that needs a donation.
This seems to contradict the OOS that is supposed to give the right of choice and this was even a point for the framework presented by Pro.
Because the difference between "presumed consent" and "no consent" is core to the discussion, we can conclude that the right of choice is really important for Pro and it's really important for a just society. It's important to preserve the wishes of the living after they die. Wishes that are relevant to their own body and their own rights.
This is so important that the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin addresses this in its Article 17. 
"Article 17 – Consent and authorisation
Organs or tissues shall not be removed from the body of a deceased person unless consent or authorisation required by law has been obtained.
The removal shall not be carried out if the deceased person had objected to it. "
An answer to both question can only be obtained using a mandatory choice system and not with an Opt-out system.
So unless Pro is advocating for a "presumed consent" system that doesn't give you the option of opting out, this should not be an argument.
And this is the same fact that makes mandatory choice, a better system.
We can reach the same amount of donations that the OOS should get if everyone that it's not willing to donate would express this wish, but without risking the rights and wishes of the donors that didn't want to donate.
- Pro's arguments don't show a system that would be used by a just society. A just society would understand the importance of the real and explicit choice and not assume anything related to the rights and wishes of the (potential) donors.
- Most of the advantages Pro used as arguments are as good as the mandatory choice advantages.
- The difference lies in the fact that mandatory choice does take the rights and wishes in to account and ensures that the decision of each person is respected. In the case of OOS, this is not always the case.
- The mandated choice system is better, on balance.
Thanks again to Arc for this debate! He has confirmed in the comments that we will both pass on R5, so I will use this speech to defend my case and to present voting issues.
P1. "Presumed Consent" is not the same as "No Consent"
Con agrees that the terms are not the same, but claims that there is still a rights problem. I, naturally, disagree. If, under an opt-out system, one makes the choice to do not object, they have implicating chosen to allow the default setting to go forward--in a de facto sense, they have chosen to donate their organs by deciding not to do otherwise. Thus, the Pro world is entirely consensual.
The problem Con poses, i.e. that rights should not start when one requests them, is thus not a problem at all, since I always had the right to choose. It is wrong to say that an opt-out system is forcing you to request the right to choose; it is forcing you to object or not object, just as Con's system is forcing you to agree or not agree. In either of our systems, an equal amount of choice is present. In mine, you can choose to say no to posthumous organ procurement or you can choose to do nothing and thus allow the default setting to be triggered (two choices.) In Con's world, you can agree to postmortem organ procurement or refuse it (two choices).
P2. Participation Rates
Firstly, Con erroneously assumes that my sources are just talking about three countries. In fact, my first source in this section (P2) refers to "many European countries" not just Germany and Austria, and certainly not just the U.S. My source says, to repeat: "in many European countries, individuals are automatically organ donors unless they opt not to be--organ donation is the default choice. In most of these countries, fewer than 1 percent of citizens opt out."  My second source here does specifically refer to Germany and Austria, and Con does not dispute the veracity of the data for those two states.
Next, Con presents a series of charts, with which he argues that I am cherry-picking successes and that an opt-out doesn't actually increase rates of donation. I have three things to say here: (1) most of Con's data is 10 years old; this doesn't reflect implementation of these policies more recently, factoring in any new medical or policy advancements that may have been made in that time, (2) for Con's argument to matter, Con must show that his counterplan, MCS, has donations rates that are functionally the same or more than my system's--if Con can't do that, my system should still be preferred as the better of the two, and (3) my system does actually increase donation rates. Since (3) requires a bit more elucidation, allow me to elucidate.
A study released just after Con's source No.1 was published writes, "This article analyzes the impact of presumed consent laws on donation rates. For this purpose, we construct a dataset on organ donation rates and potential factors affecting organ donation for 22 countries over a 10-year period. We find that while differences in other determinants of organ donation explain much of the variation in donation rates, after controlling for those determinants presumed consent legislation has a positive and sizeable effect on organ donation rates. We use the panel structure of our dataset to test and reject the hypothesis that unmeasured determinants of organ donation rates confound our empirical results."  This is important because (a) Con's source suggests that confounding variable such as cultural practices are to account for discrepancies in donation rates--a claim this study outright rejects, and (b) this study find a positive correlation between an opt-out system and donation rates, bolstering my assertion.
Another, more recent analysis (this is more recent than either of Con's) looked at "five studies comparing donation rates before and after the introduction of legislation for presumed consent (before and after studies); eight studies comparing donation rates in countries with and without presumed consent systems (between country comparisons); [and] 13 surveys of public and professional attitudes to presumed consent."  It found that "The five before and after studies represented three countries: all reported an increase in donation rates after the introduction of presumed consent...In the four best quality between country comparisons, presumed consent law or practice was associated with increased organ donation--increases of 25-30%, 21-26%, 2.7 more donors per million population, and 6.14 more donors per million population in the four studies." 
While this second study acknowledges that other factors play an important, if "unclear," role in organ donations rates, it concluded that "the available evidence suggests that presumed consent is associated with increased organ donation rates, even when other factors are accounted for." 
Thus, I submit that the weight of the evidence favors the fact that an opt-out program does indeed increase organ donations rates. Even the second study I just cited, which was skeptical of the opt-out system, agreed with that conclusion. The first study describes the impact of an opt-out system as "sizeable," and my initial source notes that less than 1% of people choose to actually opt-out; that would be a massive improvement over the status quo.
So, the "social process" Con is concerned about, as well as other, possibly confounding variables, once controlled, do not seem to hinder the efficaciousness of an opt-out system.
Con agrees that utility ought to be our standard in this debate. This is CRUCIAL. Why is it so vital, you may be wondering? Many of Con's arguments are based on rights--yet, under a utilitarian system, we do what is the best interests of the majority, even if that requires some infringement of rights. If organ donation save lives, as Con agrees it does, and an opt-out system is the best way to maximize organ donation, then we must vote for the opt-out system.
CN. 1 and CN. 2
Insofar as my premises stand, so to do the conclusion I draw from them.
C1. Organs save Lives
Con agrees, so there is no contest here. The question now becomes: who saves lives best?
C2. The Black Market
Again, unless Con can show that the Mandatory system has donation rates that are the same or more than the Opt-Out system, Con cannot claim that the benefits of one are the same as the other.
Con, in his previous speeches, has not provided any evidence that his system has better rates than mine; in fact, I showed that the opposite was true based on the evidence already presented in the debate. Thus, I am saving more lives and depressing the black market more than Con.
I will repeat what I said, just to crystallize my point: "please note that an OOS system reduces organ shortfalls as well--and perhaps does so more effectively than MCS. According to sources presented in my case, under an OOS system, only about 1% of people refuse to have their organs procured once they die. A good exemplar of this statistic is Austria, 'which uses opt-out, [and] nearly everyone (99 percent) [donates].' Whereas, in the Illinois example, only 60% of its population are donors. So, we're comparing around 99% of people as donors to 60% of people as donors. Under a utilitarian calculus, we should prefer the former to the latter." I also noted that "just 'two states that have mandated choice programs through departments of motor vehicles report relatively low numbers of pro-donation registrants compared with nondonors or undecided persons.'" There were also problems with my opponent's Brazil example and my counterexample of Texas should also be weighed in. [Please Consult my R3 for Sources and Full Arguments]
C3. Rights: The Dead vs. The Living
This contention functions as an "even if" argument. That is to say, that if Con were to somehow show that an OOS violated the supposed right to choice of the dead, it wouldn't matter, since the rights of the living ought to be preferred. Thus, there is no contradiction--OOS does give a right to choice, as Con has failed to show otherwise and as I have strenuously defended the notion that choice is present.
The right to choice matters insofar as it is a harm--and a utilitarian calculus calls on us to minimize harms. Insofar as we can prevent death (also a harm) without incurring other harms (like violating the right to choice) and opt-out system is preferable.
Cross-apply my arguments about consent here. Moreover, if the law does not require active consent, but does require tacit consent, e.g. an opt-out system, it still complies with the criteria provided by the treaty. The treaty does not require that a law require active consent, it merely says that if the law does so, then such consent must be procured beforehand.
1. An Opt-Out system will likely increase Donation Rates more than a Mandatory Choice System
Conclusion: The opt-out system is the best of two worlds, both in terms of utilitarian calculations and in terms of the rights-based calculations. Whichever world you're looking at--even if choice is important--the Pro world wins out. Thank you, and please VOTE PRO!
1 - http://www.psychologicalscience.org...
2 - http://www.hks.harvard.edu...
3 - http://www.bmj.com...
Thanks again to Arc for a great debate and to Larz for the tourney. Once again, please VOTE PRO!
I thank bsh1 for this debate. We agreed in the comments to pass on Round 5.
In this round, I will defend my case from his attacks in the third round.
About Presumed Consent
The rebuttals of Pro is (1) that the right of choice is given, just like in the Opt in system (2) that the rights of the dead should not outweigh the rights of the living.
(1) I never claimed that they didn't have the right to choose, but the fact that they are assuming the wishes of the people opens the possibility of taking the organs of a person that didn't want to donate, in the same way that the wishes of a person that would like to donate are not followed in a opt in system.
My argument was that there should be coherence.
(2) The rights of the living are not being affected by the decision of refusing to donate an organ. This is part of the rights and wishes point. The fact that Pro is giving the choice to "refuse to donate" means that this rights and wishes are important.
And the fact that you are not obligated to donate means that the rights of people that needs donations are not being affected.
P2: Rights and Wishes
My argument was not that Pro was not able to provide a solution to fix OOS. My argument is that the solution is not consistent with OOS.
And he proved it by providing solutions that don't consider OOS as the default.
Pro's solutions consist on a next of kin or just not presuming consent. That shows that the default should be the assumption that the person is not consenting because it would ensure that the rights of that person are not being affected.
Then Pro claims that we can presume consent of rational persons because they can consent. Sadly, this is not true just as I explained in P1. This is not consistent with moral truths.
We do not presume consent for other medical procedures. Considering that we don't have another example where consent is presumed for an invasive procedure like that, we cannot say that "we can presume consent of rational persons just because they are able to consent".
P3: Donation rates
The argument was that it's not sure that the donations rates were going to increase. This is important because it shows that there are different factors that affect the donation rates.
I knew that was a common argument for presumed consent so I wanted to challenge that notion a little bit, specially considering that in Brazil, the donation rates actually got reduces and they were obligated to return to the old system. That with the rebuttals in another round about he framework.
Remember that this was in the argument against Presumed consent. I did not mention mandated choice yet.
The reason I mention this as an argument is because it complements the arguments for Mandated choice.
Arguments for Mandated choice
Here Pro mentions right of choice again. And again, I never claimed anything about the right of choice. I don't believe that OOS shuts everyone up and presume consent without letting them to choose. The argument was that, just like the OIS, the OOS doesn't ensure the answer of everyone, something that MCS does.
The fact that you are ensuring the answer of everyone makes assumptions unnecessary. So one of the problems with the Opt In system, that the Opt out system also share go away. No more assumptions.
This is just, specially related to the OOS because you are not assuming something that would affect the rights and wishes of the citizens negatively.
There is no risks in MCS.
P2: Organ shortages
Here Pro claims that OOS also reduces organ shortfalls, even more than MCS.
But how is this possible? If we ask every adult if they consent, and we respect those wishes, then we will have the maximum amount of organ donations while being just and respecting everyone's decision.
The fact that Pro is claiming that they might be more donations than MCS is because he knows about the risk of people not stating their wishes and the rights and wishes of these people being affected.
And as I explained in other round, the rights of the people start before they explicitly ask for them, so the rights are indeed being affected.
Then he claims that under Utilitarian calculus, we should prefer the latter, even if it affects the rights of the people.
This is false.
The utilitarian calculus should start after we determine the just options a "just society" may choose.
We could imagine a system where the government is allowed to conduct a lottery for forcible organ donations. That would be "better" in Pro's analysis because If one person donates that could save several persons' lives.
But we can quickly see that it's a horribly decision.
It's true that a government should use Utilitarianism to take the decision, but a just society should only weight (using Utilitarianism) the just options, and OOS have those risks that Pro accepts by claiming that there may be more donations in OOS, just like there might be more donations using the lottery.
"The support for human rights is based on our feelings and deep beliefs that human rights are good. These feelings do not arise in a vacuum. They are acquired because, as history repeatedly shows, violations of human rights have horrible consequences." 
"Thus, the utilitarian benefits of human rights coincide with the main reasons why the feelings on human rights have developed." 
Then he claims that the MCS has also non successful examples like the case of Texas. But is Pro's source showing an unsuccessful example? That would be true only if the people that were consenting to donate changed their mind while changing to the presumed consent system (similarly to what happen in Brazil with the OOS). The idea of mandatory consent is to compare it to the Opt in system and see that those that were not able to express their consent for any reason are able now, increasing the donation rates.
So in the case of Texas, those 80% of population refusing to donate should also refuse in the OOS to make it just. Pro is claiming that this does not happen and there are more donations in OOS, actually repeating the case of Austria with the 99% of population.
If we were talking about the case, the difference between the 99% and 20% means a 79% of population that would have their rights and wishes affected by the OOS which is not just.
P3: Best of two worlds
The argument was just to reiterate the balance between the utilitarian benefits and the rights and justice in the MCS. The two worlds in mention are the OIS and OOS. So MCS gets the best of those two systems.
The mandated choice system is usually implemented with an ease of choice, giving the citizens more places to give their explicit decision, not only in the drivers license.
And as stated before, if one may die before giving their consent, in cases like where the person is too young of is mentally ill, then we should take the default into account and not presume consent of any kind. This was also suggested by Pro in his rebuttal and we can agree that is just.
About people refusing to choose, how are they going to refuse to choose. If they were getting their driver's license, they would need to answer to the question to get their license. There is no blank option.
In the case no choice was made, we should be consistent and not presume consent.
P4: Ease of Choice and Autonomy
This would be similar to the case of Presumed consent with no next of kin. Except that in no case consent would be presumed by the MCS.
The only real issue of not being able to know the choice of a person is if they die too young or there is mental illness. In those cases, a next of kin may be necessary.
If there is no next of kin, we may presume that there is no consent.
1. OOS has the risk of affecting people's rights and wishes. This is clear in Pro's arguments about OOS having higher donation rates than MCS. This will only possible if in the cases were the rights and wishes are not taken into account.
2. MCS has the benefits of OIS in the rights/justice framework and the benefits of OOS in the Utilitarian framework.
There is a balance between justice, which is what this debate is about and utility, which is what the decision of a government should be based on. So the government in a just society would choose MCS.
3. If every person that doesn't consent to donate would express that decision, the donation rates of OOS and MCS would be the same.
This case is ideal and very unlikely, so MCS is better because it's more reliable.
Thanks for the debate. Vote CON.
As agreed, I am passing on this round. Thanks again to Arc for a stellar debate and to Larz for hosting this tournament. Please VOTE PRO. Thank you.
As agreed, I am passing on this round. Thanks to everyone :D
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