Territory, values, and health law in a devolved United Kingdom: examining the role of the gift in opt-out organ donation

Abstract

Devolution since 1998 has seen administrations in England, Northern Ireland, Scotland, and Wales gain distinct powers over a range of policy fields, with health prominent among them. This poses two pressing questions for socio-legal scholarship that we address in this article: to what extent are changing territorial arrangements significant for the substance of United Kingdom (UK) health law and the values by which it is oriented, and what role is played by devolved health law in redefining territories and values within the UK? Informed by perspectives from human geography and policy studies, and drawing on our own qualitative empirical research, we examine recent lawmaking processes in relation to organ donation reform. ‘Opt-out’ or ‘presumed consent’ schemes, adopted in sequence in each of the UK countries, appear to challenge the centrality of voluntary altruism, extolled as a fundamentally British value in Richard Titmuss’ post-war work on social policy. Our findings confirm that there has been a reterritorialization of values under devolution, with greater emphasis on sub-state identities. However, they also indicate the persistence of a common space of policy learning across the UK and an enduring concern with altruism in this area.