In Germany, an agreement has been reached on the so-called “decision solution”.¹¹ It is an extended opt-in solution because the potential donors are encouraged to declare to donate by receiving preceding information on transplantation. The declaration is then registered on their health card. However, there is no obligation to make a declaration.

According to the decision solution, post-mortem organ removal is permitted if the potential donor has given his consent during his lifetime. This means that a potential donor’s active act of deciding is necessary. In order to be able to make this decision accordingly and subsequently deliver a statement, the health insurance companies provide adequate information to the citizens. This is absolutely necessary, because the donor’s autonomy can only be taken seriously if the citizens have been sufficiently informed about the possibility to donate organs, as well as the alternatives.

In case the deceased did not consent during lifetime, removal is still legitimated if a person associated with the organ donor has consented to the organ removal after his death. In doing so, the relative has to take into account the donor’s presumed will. The person authorised to consent only has a right to do so if the will of the deceased cannot be determined.¹² According to law, a formalistic approach has to be taken regarding the order of relatives authorised to consent. Spouses and civil partners rank first, children who are of full legal age second, followed by parents, siblings of full legal age, and finally grandparents. The relatives are, however, only authorised to consent if they have been in personal contact with the potential donor during the last 2 years prior to the organ donor’s death.¹³

It is the aim of this legal model to allow the potential donor to make an informed decision on the handling of his corpse and at the same time the best possible way to protect his autonomy , as well as guarantee maximum post-mortem protection of personality rights. These provisions are protected by criminal law. Whoever removes an organ following brain death without the person concerned having consented during his or her lifetime, or a relative having consented after the respective person’s death, is liable to prosecution under the Act on Transplantation.¹⁴

There exists hardly any consent on organ donation. Only 9 % of the citizens suitable to be an organ donor make a decision on whether or not they want to donate.¹⁵ Albeit there was hope that the introduction of the “decision solution” in 2012, prior to which only the so-called “consent solution” (an opt-in solution without any preceding information for potential donors) had been in force, would increase the number of statements in favour of organ donation; this has not been the case.

This means that in 91 % of cases the relatives decide whether the brain-dead patient is an organ donor or not. As of now it is not clear to what extent the relatives’ decisions orientate themselves on the presumed will; relatives in many cases presumably are making the decision according to their own beliefs since a presumed will often cannot be determined.

Ultimately, as has already been said above, in Germany only 15–16 persons per one million inhabitants are post-mortem organ donors.

Austria has codified the so-called “dissent solution”.¹⁶ According to this opt-out solution, it is legitimate, as long as the potential donor did not object during lifetime, to explant single organs or organ parts of a deceased person in order to save another’s life or restore his health by way of transplantation.¹⁷

Therefore, the removal is only prohibited if a declaration (either in writing or recorded in the dissent register) exists stating that the deceased, or his legal representative, has explicitly objected to organ donation¹⁸ prior to his death. It is, in principle, the duty of the patient or his legal representative to arrange for the doctor to gain knowledge of this declaration. The doctor does not have an obligation to make comprehensive enquiries. It can, however, be demanded that the doctor has to check whether or not a respective declaration exists within the domain of the hospital.¹⁹ In any case, an obligation²⁰ to enquire with the Austrian Institute for Health Care²¹, which manages the Austrian-wide dissent register exists.²² Everybody, from age 14 onwards, can give his dissent to the removal of organs, or certain organs respectively, by way of declaration.

In practice, doctors usually only explant an organ after consultation with the deceased’s relatives. Therefore, a so-called extended dissent solution is practised, according to which the relatives can object to organ removal, with the consequence that organ removal is not performed.²³ It is the aim of these rules to balance the two legal goods standing in opposition to each other, namely rescue of human life and restoration of health, respectively, and post-mortem personality right and dignity . Ultimately, the superiority of life and health has been legally determined.²⁴

That the living persons’ interests are valued higher than those of the dead becomes apparent in a long (legal) tradition in Austria concerning the provisions on autopsy . Rules on autopsy had already been established during the reign of Emperor Joseph II,²⁵ and regulation has continued until today. Nowadays, an autopsy cannot only be ordered for reasons of security and criminal procedure, but also in order to preserve other public or scientific interests.²⁶ The law mentions particular diagnostic ambiguities of the case or performed surgical interventions as reasons. Due to the use of the word particular it is clear that autopsies may be performed also for other reasons, for example out of sheer scientific interest or curiosity, perhaps in order to get results that would be of interest to the living. This principle mors auxilium vitae (The dead shall serve the living)²⁷ is also evident in the legal conception of post-mortem donation.

Maintaining the status quo as potential organ donor, i.e. staying passive during lifetime, is—due to the long tradition—most probably regarded as being sufficient in protecting post-mortem personality rights by the legislator.