The Basic Problems Of The Civil Law Of Organ Transplant Research

With the development of medical technology on organ transplantation, man's life is prolonged. Organs, which are needed in the transplantation operation, are usually are donated by people. The present research on the transplantation focuses on the organs' procurement and distribution, not donors'self-determination, because organs are always presumed to be donated in advance. In fact, the self-determination on organ donation is a personality right, which should be valued in civil law. The research mainly focuses on the object, subject and the balance between the individual's autonomy and the regulation of the state in the paper, in order to realize the self-determination of organ donation systemically.The paper is comprised of the preface, the conclusion and the main body made of five chapters.The preface discusses the problems of the donation self-determination in the theory and the practice and the necessity of the research. And then analyze the thought of the research.Chapter One focuses on the legal nature of organ. As object, there are controversies on the organ's legal nature, which are about the personality right or the real right in the civil law and the property right or the privacy right the common law. Its nature involves the rules of its management, safeguard and relief. Through the discussion on its theory and practice, we conclude it is the personality right in the civil law and the privacy right in the common law, no matter whatever. The use of donation self-determination must base on it.Chapter Two is about the theoretical basis of the donation self-determination. Self-determination is not only the embodiment of principle in ethics, but also the main basic right in the jurisprudence. You must restrict its use in order to infringe the rights to life and freedom. Life is different from interest, because life is sole. We don't treat the life as the interest in the angle of Utilitarianism or Contractarian. We must also realize that organ donation is not our duty. One can donate one's organ for other's health in the purpose of charity, unless donation injuries him or her seriously or makes him or her die. We must respect one's dignity and body, so we respect one's self-determination and the rights to one's life and health respectively in the law. And then, we can safeguard the self-determination prior to the right to health when they are conflicted in the legal scope. We must distinguish between the donor's self-determination for others and the patient's self-determination for oneself, so that the law enforces the doctors'duty of disclosure to avoid the donor's wrong decision, to make sure that the self-determination is correctly used.Chapter Three mainly discusses the autonomy of private law and national regulation in donation self-determination. Donation isn't a legal act, but regards as quasi-legal act. It needs their recognition, not their action capacity and disposition authority. Thus, it makes the incompetent adults and minors enable to donate their organs. The donation doesn't violate the law and public order and good morals. And the paper studies the donees in details. In comparison to countries and districts, donors may use their self-determinations when the conditions are satisfied legally. One important condition is the doctor's duty to disclosure information.Chapter Four analyzes the relationship between the exercise of the donor's self-determination and the doctor's duty to disclosure information. To realize the self-determination, the hospital takes part, and the law enforces the doctor's duty to disclosure certain information regulated by law to make sure that the donor understands, which absolves the doctor from legal responsibility, and constitutes the valid premise on the exercise of the self-determination. The disclosure standard compromises rational doctors with the specific individuals. The purpose is to safeguard the donor's self-determination in civil law's autonomy.Chapter Five analyzes the relationship in the exercise of the donor's self-determination and the right to donor's consent in detail. The law restricts the scope of donation to avoid the donor's serious injury or even death. If the donor's act is valid, he/she can't petition the doctor to indemnify his harm and damage. In the law, his/her donation act is regarded as rescue in tort law. The right to donor's consent is extensive, including the rights to refuse and to rescind. The following discusses the judging criteria about the competency in organ donation among competent adults, incompetent adults and minors, in the living donor. Competent adults can donate their organ in the legal scope. Incompetent adults and minors can't donate their organs unless it's certain for their best interests complying with the law. As cadaveric organ, the focus of controversies is on whether organs are regarded as being donated by the so-called donor, if the deceased has not expressed his/her donation intent or been opposed to organ donation. There are two ways of consent in legislation, namely voluntary consent and presumed consent, due to different values among these countries. But the presumed consent isn't on behalf of the deceased's expression of intent, since the deceased didn't express his/her intent of donation, and was expressed. There are two ways to define death in the law, the cardiopulmonary definition of death and a definition of death based on cessation of brain function. The brain death criterion is rejected by some countries due to the beating heart donor. At present, there are four kinds of death legislation, respectively brain death, heart death, brain death and heart death, the option of brain death or heart death. The last is named as two-way death criterion, as compared with the traditional death criterion——heart death, the option to choose life or death isn't accepted. Incidentally, a vegetative patient isn't a person of brain death. The detainee and the condemned are protected to exercise their organ donation self-determinations, but they should be restricted due to their unfavorable situations. The use of fetal organ and tissue through induced abortions is challenged, different from spontaneous abortions. However, the quasi-mother is considered as the agent to give donation consent. To avoid abusing the fetal organ and tissue, the consent to use and the abortion decision from use of the fetal tissue should be separated.In conclusion, the organ donation self-determination is respected as a human right and a personality right. The states regulate its right to exercise through legislation, in order to ensure it to be exercised correctly, not erroneously or involuntarily. The doctor's disclosure and the certain authority's censorship ensure the exercise of the donor's self-determination. It embodies the balance between the autonomy in private law and the state compulsion.