The Family Veto in Presumed-Consent Organ Donation: Procedural Standing without Substantive Override

Most jurisdictions that have adopted presumed consent for deceased organ donation have simultaneously retained a family veto: where relatives object, retrieval does not proceed, even where the deceased registered a decision to donate. This article argues that the combination cannot be justified on any of the rationales offered for presumed consent itself. If the policy is defended as producing fewer frustrated wishes than an opt-in default, the veto substitutes a third party’s preference for the person’s own, and does so most often in the very class of cases the default governs; if it is defended on non-consensual grounds — the wrongfulness of refusal, or the claims of those awaiting transplant — the family’s preferences have no standing at all. Disclosure does not dissolve the difficulty: telling registrants that relatives may object supplies no justification for the veto, leaves them no means of securing their decision, and, if complete, removes the ground on which the default was adopted. Three defences of the veto are then examined. The claim that the deceased has no interests to be set back is unavailable to defenders of the present arrangement; the burdens families bear ground support rather than authority; and public trust yields a defeasible institutional reason rather than a conferred power. A procedural–substantive distinction is proposed that preserves the family’s evidentiary and supportive role while withdrawing the override.