The amendment four years ago was put forward by Dr Evan Harris, the Lib Dem MP for Oxford West and Abingdon, although Tam Dalyell recalled that he had championed similar measures decades before. This was Harris’s summary of the case for change:
First, it creates a default position that life should be saved rather than a default position that life could be lost. Secondly, as the evidence shows, it saves lives that are currently needlessly being lost; and thirdly, it encourages informed decision making by potential donors during life as opposed to what is inevitably subjective second-guessing by grieving relatives after death. Fourthly, it is more likely, as we have heard, to respect the autonomy and wishes of the deceased, the vast majority of whom would want to donate, while still allowing conscientious objectors to do so while having protection in law for their objections. Finally, it treats relatives more fairly by not imposing life-and-death decision making upon them at a very difficult time.
The Conservative MP, David Wilshire, provided robust opposition.
I accept that some people who are faced with the traumatic experience of someone who is dear to them dying will find it almost impossible to cope with such a request. It would genuinely add to their grief. However, others—I have spoken to some over the years—somehow found it helpful in a moment of appalling grief when someone said, in the middle of catastrophe, "Here is something that you could consider doing that would perhaps make the grief more bearable." Although some people would find the request almost impossible to handle, others would find it helpful to be asked. I am deeply sorry that nobody asked me at the time. However, I think that I know myself well enough to say that if any organs had been removed from my daughter and I could have had the opportunity to object but the matter was taken out of my hands, I would have been outraged for the rest of my life.
Labour’s Rob Marris got to the heart of the matter:
I get the feeling that expediency is taking over: we have to change the regime because we cannot get enough organs. I am not entirely convinced that that is the right way to proceed morally, nor that it would work in practice. The most telling remarks that I read on that issue come from James Kennedy, who is director of the Royal College of Nursing in Scotland. He said: "The tragedy of the recent organ retention scandals [Alder Hey and Bristol] has made it absolutely clear that it is entirely wrong for healthcare professionals to ever presume consent."
On the question of “opting out”, the Tory MP Andrew Murrison, made a shrewd point about the demography of “presumed consent” I am also against the measure because the people who opt out will be a skewed population. We know that the articulate, the middle class and those from certain sectors of our society are keen on taking affirmative action of one sort or another. It is likely that those who perhaps do not find it easy to articulate a view or, indeed, whose lives are chaotic in a way that would make such issues a lower priority for them might be disadvantaged as a result. We should remember that silence may also indicate a lack of understanding, rather than agreement with a certain policy.
But the most straightforward and compelling arguments against the amendment were advanced by Gordon Brown’s own colleagues at the time. As Rosie Winterton, the then health minister, said:
I am also against the measure because the people who opt out will be a skewed population. We know that the articulate, the middle class and those from certain sectors of our society are keen on taking affirmative action of one sort or another. It is likely that those who perhaps do not find it easy to articulate a view or, indeed, whose lives are chaotic in a way that would make such issues a lower priority for them might be disadvantaged as a result. We should remember that silence may also indicate a lack of understanding, rather than agreement with a certain policy.
The state does not own our bodies and neither do researchers nor clinicians. We are talking about people making a gift to society, and we must make sure that we enable that gift to be made without presuming that everybody wants to make it.
And here’s Dr John Reid, then Health Secretary, explaining why the Government had whipped the vote, ensuring its defeat:
The decision about one's own body should be for the conscience of individual citizens. It is not for this Parliament, by free vote or otherwise, to impose on individuals a requisition of their bodies after death for the use of the state. That is why there is no free vote. We are giving the freedom of conscience to the people of this country, and we are not prepared to work on the assumption that Parliament should dictate to them that their bodies belong to the state after death.
So Mr Brown: what has changed?