A heart transplant recipient is asking state lawmakers to reconsider its approach to organ donation.
If her proposal is embraced, Nevada would become the first state in the country where most people who register at the Department of Motor Vehicles would be automatically considered organ donors unless they formally indicate that they do not want their organs donated upon their death. Supporters believe the change could help boost the number of future potential organ donors in a state where the current opt-in rate is lower than the national average.
But Senate Bill 134 faces a seemingly uphill battle over concerns about bodily autonomy and potential conflicts with federal laws regulating organ donations.
Currently, Nevadans have the ability to “opt in” as an organ donor. They can do so by indicating as much at the DMV when registering for a driver license or identification card, registering on a national database, expressing their desire in a will, or communicating those wishes to at least two adults.
Ashley Biehl, a 30-year-old attorney in Clark County who received a heart transplant in 2017, would like Nevada to become an “opt out” state, wherein a person’s openness to donating their organs upon death is assumed unless a person has formally indicated otherwise.
Several countries — among them Spain, Italy, Austria and Sweden — have opt-out organ donation systems. Earlier this year, Nova Scotia in Canada became the first jurisdiction in North America to embrace an opt-out system.
State Sen. James Ohrenschall (D-Clark) is sponsoring SB134, which received its first hearing in the Senate Government Affairs Committee on Monday.
The proposal drew immediate concerns from the committee’s two Republicans and from the state’s leading nonprofit focused on organ donations.
“I’ve been getting some questions coming at me, from disparate sources, that have to do with the intersection between government and the use of our bodies without our consent,” said state Sen. Keith Pickard (R-Clark). “The general consensus has been that the government can’t make choices over our bodies, over our personal autonomy. This (proposed bill) would seem to do violence to that.”
“No violence would be done in terms of (people’s) rights to their bodies,” he responded. “The decision would still be there whether they wanted to participate in being an organ donor or not. The change is in how the question is asked, but I would argue that the same autonomy everyone exercises now would still be there.”
Another Democratic lawmaker drew a parallel to other issues of bodily autonomy.
State Sen. Pat Spearman (D-Clark) asked Ohrenschall if he would “be willing to engage those who don’t want the government to have control of their body when they’re dead but it’s okay for the government to have control of their reproductive organs when they’re alive.”
Added Spearman, “There’s got to be a pedagogical process that allows one to accept A but reject B.”
According to the U.S. Health Resources & Services Administration, 90% of adults support organ donation but far fewer have actually signed up as future donors.
Statistics cited by the Nevada Osteopathic Medical Association put Nevada’s opt-in rate at 41% — below the national average of 49%. Organ donor rates range from 69% in Colorado to 32% in Texas.
The association is supporting the bill, writing in a letter that its passage would “greatly increase the number of donations and save untold number of lives.”
“Nevada has the opportunity to lead the effort to increase organ donations nationally,” the letter reads.
But the Nevada Donor Network isn’t so sure.
Their lobbyist, Dan Musgrove of 360 Strategies, said the nonprofit is neutral on the bill but concerned about potential unintended consequences. One concern is whether the shift might have a “chilling effect” on potential donors. Another concern is possible legal challenges arising from perceived conflicts with the federal Uniform Anatomical Gift Act.
“This sounds like a good idea, but there are reasons no other state has done this,” said Musgrove. “There are concerns it could go the opposite direction.”
State Sen. Scott Hammond (R-Clark) raised the possibility that people might not understand the change and be tricked into an organ donor status they don’t want.
“There’s a lot of paperwork thrown at you, lots to sign and lots of paperwork,” said Hammond of a typical trip to the DMV. “What happens if (someone) glazes over (the opt out language), and the next thing you know they’re an organ donor and they didn’t know?”
The Independent American Party and Nevada Families for Freedom formally opposed the bill on grounds that an opt-out system would confuse people and is anathema to a culture that is “deeply steeped in individual rights.”
Ohrenschall told the committee he believes the language can be fine-tuned to address some concerns. He said the bill isn’t designed to trick anyone into becoming an organ donor but to make a statement of the importance of organ donation. He wants the change to be accompanied by a public awareness campaign that compels people into considering the issue.
There are more than 107,000 people on the National Transplant List, including more than 500 Nevadans.
Ashley Biehl, the heart transplant recipient pitching an opt-out system, was on that list for 30 excruciating days in 2017 — from May 29 until June 28. Her own heart failed after a freak heart attack at only 26 years old.
Later that year, Biehl met her donor’s family. In written testimony submitted to the committee, she explained that her donor — Jessica — had separated from her first husband and was engaged to a new man when she died of a stroke at 26 years old. Biehl learned that her donor’s fiancé told the organ procurement team that he was unwilling to sign the forms required for Jessica to become an organ donor. He said the couple had never talked about the issue. But Jessica had registered as an organ donor at the DMV, so her soon-to-be-ex-husband stepped in as legal next of kin and signed the paperwork in order to honor her wishes.
“Unfortunately, organ donation is something that most people don’t think about until it becomes necessary for someone close to them,” wrote Biehl in her letter to lawmakers.
“Nevada would be at the front end of what I believe will be an up-and-coming trend in organ donation across the United States over the next several years,” she added.