Apologies, I cannot help myself:
"Basically, any intentional nonconsensual touching which is harmful or offensive to a person's reasonable sense of dignity is actionable."
I would be hard put to say organ harvesting is "harmful or offensive to a person's reasonable sense of dignity" and would argue that the ability to opt out gives those who think it is ample opportunity to opt out.
Is grave-robbing or body snatching harmful or offensive to a person's reasonable sense of dignity? Is the harvesting of a long-dead cadaver's organs (as ludicrous as it sounds it was once a major problem) substantively different than the recently deceased who did not give their consent to have their organs harvested? If you find one reprehensible, it is not a huge leap to find the other just as concerning. The difference, of course, is that in one case the organs can be used to save other people's lives.
If you are comfortable in the knowledge that not everyone's "sense of dignity" is satisfied, that lives are being saved thanks to persons who would have otherwise not consented, that's fine.
We even get a nice three part test:
" (a) the patient must be unconscious or without capacity to make a decision, while no one legally authorized to act as agent for the patient is available"
There dead Jim, they can't make a decision, and their family has the ability to make a decision for them.
As it applies to organ transplantation: I won't speak for Prekonate but I plead no contest here.
"(b) time must be of the essence, in the sense that it must reasonably appear that delay until such time as an effective consent could be obtained would subject the patient to a risk of a serious bodily injury or death which prompt action would avoid"
Organs must be harvested rapidly.
Organs must be harvested rapidly upon death, yes, but that is to prevent loss of life to someone else. It's clear that a reasonable person would interpret this section of the multi-part test as referring to procedures conducted on the patient themselves, in order to save their life. I don't know about you, but harvesting all my organs would probably result in my imminent death. If near death, it would guarantee it.
"(c) under the circumstances, a reasonable person would consent, and the probabilities are that the patient, would consent."
I would say a reasonable person would consent to have their organs harvested, if asked. You can disagree with me if you wish. Since it looks like this is going to become law, I would argue those citizens who will be effected by it would also agree.
Here we play the dangerous game of "balance of probability". You very well may be right, but there is a risk that you could find yourself not being the "reasonable person". It may be that one could argue that a reasonable person of X or Y demographic, one similar to the patient, would not have consented. I'm not too familiar on public opinion polls on the popularity of at-death organ donation myself.
At best, even by this standard organ harvesting could only meet 2 portions of this 3 factor test.
Edit:
Des-Bal wrote:Declining the negative option
is express consent. You manifested your consent by not opting out.
Not quite. Implicit Consent, as defined by the
Legal Dictionary: "The assumption that a person has given permission for an action, which is inferred from his or her actions, rather than expressly or explicitly provided."
A manifestation is an inferred logical result given prior behavior. In this instance we assume that if you did not opt out, you therefore given your consent. (If P, then Q). Explicit consent is more like a tautology, if you express your consent, you've given your consent. (If Q, then Q). Of course, our side of the argument and all this discussion of medical doctrine is, at its core, premised on the fact that these two statements are not one in the same.