Study On Private Law Of Organ Donation And Transplantation

From the perspective of medicine, organ transplantation includes organ removal and organ implantation. According to different standards, there are different types of organ transplantation. In this paper, organ transplantation is defined in narrow sense and limited to living organ transplantation and cadaver organ transplantation. Organ donation is the only mode of human organ transfer, and also the legal basis of organ transplantation. Organ transplantation is implementation of organ donation.With the development of biomedical technology, the value of human organ is exploited gradually and human bodies became precious and scarce resources. Does human organ, however, belongs to personality or property? The answer will affect the design of legal system on organ donation and organ transplantation. Existing state of human organs is divided into three types:organs in living bodies, organ removed from living bodies, and cadaver organs. Right of personality is a kind of civil rights, and the organ in a living body is the object of three elements of right of personality, namely, the personality. Civil attribution of both the organ which removed from living body and non-living organ, such as cadaver organ, should be analyzed comprehensively by the criterion of "outside the body" and "functional integration". Before implanted into a recipient’s body, an organ which removed from a living body meets the criterion of "functional integration" and is a kind of personality; before a recipient determined by the sharing and distribution systems, a cadaver organ is a piece of special property, which becomes a kind of personality after the recipient is determined.There are many ethical controversies in the field of organ donation and organ transplantation. Besides, there are many conflicts of interest which cannot be governed by ethics. Based on this, it is necessary to explain the organ donation and organ transplantation by the legal principles and regulate them by laws. Through the analysis to the core attribution of private law, we can identify the legal fundamental relationship between organ donation and organ transplantation, namely the legal relationship among donors, recipients and medical institutions, is governed by private laws and therefore, there is space for autonomy of private law. Human organs bear human dignity. Under the theories of "damage theory", "legal paternalism", "legal moralism" and "communalism", the legal relationship between organ donation and organ transplantation are intervened by different forms of intervention from the state. However, level of force of the intervention from the state must be oriented and regulated by value of law, such as order, security, fairness and efficiency.According to the general theory of legal fact, declaration of will is the core element to the behavior of living organ donation and this behavior is a kind of legal act. The behavior of living organ donation is classified into a legal act of personality, bilateral legal act, free legal act, formal juristic act and consensual legal act. For consent model of cadaver organ donation, the model of express consent fully respects the right of self-determination of the donors and is more applicable in our country. Similarly, because declaration of will is the core element to the behavior of cadaver organ donation and such behavior is also a kind of legal act, and is classified into special legal act of property, unilateral transaction and formal juristic act.Legal act, which is demonstrated mainly through requirements of validity, is the arena of autonomy and regulation. The behavior of organ donation is not an exception. The sale of organs and other physiological damages to the donors by organ removal are prohibited as for as the content of the behavior of living organ donation. As for the requirements of legal subject of the behavior of living organ donation, donors shall have full capacity of civil act and be an adult. Also, there shall be identity relations between donors and recipients within a certain range. However, under the current situations of human organ shortage, the restrictions on the qualification of minor and mental patient to being an organ donor in a living body, identity relations and cross donation should be allowed within a certain range. As for the requirements in the aspect of declaration of will, being voluntary is required when the donors donate organs. Humane and practicable system should be designed in legislation to avoid the donors facing external undue pressure when they making choice. Furthermore, the form of declaration of will and the process of donation regulated by laws are only management specification, rather than effective norms in private law. As a result, defects of the form and process can not affect the effectiveness of the behavior of organ donation. As for the requirements in the aspect of legal subject, the donors of cadaver donation, firstly, should have full capacity of civil and secondly, have the rights to dispose the body organs. As for the requirements in the aspect of declaration of will, the donors should not be forced, fraud or lured when they make choice. Under the premise that there is special system to guarantee full expression, condemned criminals should not be prohibited to donate organs. As for the requirements in the aspect of content of the behavior of cadaver organ, selling of organ is also prohibited. Furthermore, under the current situations of human organ shortage, the specified donation should be allowed in a certain range. For the convenience of potential donors to donate, means of achieving cadaver organ donation should be diversified, and when the forms of cadaver organ donation behavior have certain level of defects, the donation shall be handled according to different situations.After the behavior of living organ donation entering into force, the donor and the recipient will have a sort of legal relation between them based on the content of transfer of living organ donation. After the behavior of cadaver organ donation entering into force, a sort of legal relation will be produced based on the content of acquisition and distribution of cadaver organ. After the behavior of living organ donation entering into force and before the donated organ removing from the donor, the donor can exercise the right of rescission provided that under certain conditions, but the donor shall compensate the related person loss of reliance which caused by revocation of the donation. The donor and the medical institution shall bear the corresponding compensation under certain conditions when the recipient is hurt or injured by the defects of the donated organ. When the behavior of organ donation becomes invalid and as a result the legitimacy of the organ transplantation lost, neither organ remission nor discount compensation is applicable at this time, but the donor’s loss should be redressed. There are three elements which should be considered when determining compensation of the donor’s loss-determination of the compensation standard; determination of the subject of compensation obligation; and determination of the proportion of compensation.In order to perform the content of organ donation, living organ donor and medical institution establish a sort of legal relation of organ transplantation ba sed on the content of organ removal, and recipient and medical institution est ablish a sort of legal relationship of organ transplantation based on the content of organ implantation. When it comes to cadaver donation, the donor and the receiving institution establish a sort of legal relation based on the content of organ removal and organ distribution. As for legal relationship of living organ transplantation, medical institutions have obligations of main payment obligation which based on the content of organ removal and organ implantation; subordin ate payment obligation of medical examination and assessment, disclosure and explaining, review of information, referral, preservation of medical data and regul ar follow-up etc.; accessory obligation of medical attention, minimum-damage, appropriate treatment, quality assurance, confidentiality and guarantee of security and facilities etc.. Meanwhile, donors and recipients have obligations to medical institution of payment of medical expenses, coordinating with physician for diagnosis and treatment etc..There are theoretical obstacles to medical institutions removing living organs, including the right basis of donor disposing of living organ and restriction to medical institution resulting from "no harm" medical ethics. Analyzed from the economics method of cost-benefit, the purpose of disposing of organ, and the range of disposing of organ, there is legitimacy in donors disposing of living organ. Living organ donation benefits donor’s psychological situation, which can also be proved in cosmetic and sex-change surgeries and many other modern medical practice. Removing living donor organs restricted by the principle of minimum damage, therefore medical institutions removing living organ do not run counter to "no harm" medical ethic.Owing to the dominant position of medical experts and asymmetry of information in comparison, medical institutions undertake obligations to disclosure and explain to donors and recipients in the legal relationship of organ transplantation. Compared with the general medical relationship, the contents of disclosure of medical institutions are more extensive, and the standard is more stringent. The subject bearing obligation to disclose is medical institution and the subject to implement should be the specialized agencies independent of the transplant team. The form of disclosure must be understandable and personalized according to the characteristics of the donor, while the donor must be forced to receive notification. Different from the tort that the medical institution violating the obligation of "obtaining the consent", it is an independent kind of tort that risk of damages comes into reality when medical institutions breach the obligation of disclosure and therefore cause the donor not making the opposite choice. The causality to which the rule of "if not, no" applies, is the key to the tort of breaching the obligation of disclosure. In the common law countries, sometimes judging method of the causality applies flexibly.Realistic dilemmas of current field of organ donation and organ transplantation include: serious imbalance in supply and demand of the normal organ plat; illegal underground organ trading being rampant; and resources of human organs wasting seriously. Hence, when making rules and regulations of organ donation and organ transplantation, human nature should be respected and the system of organ donation which is on basis of pure altruism motivation should be modified. To solve the dilemmas of organ donation and organ transplantation, some scholars advocate legalization of the selling of organs. However, it is believed in this paper that, on one hand, the attribution of personality of the human organs determines that human organs cannot be market oriented; on the other hand, the mode of legislation of organ donation which based on pure altruism leads to the low efficiency. Therefore, reasonable compensation mechanism should be established to incentive organ donation behavior. The specific forms of reasonable compensation include: tax cuts, priority, award of honor, health insurance and money compensation etc.. From the perspective of biology, death is a judgment of fact, which can be described as a phenomenon or a process; and from the perspective of legislation, death, involves many specific legal rules, and it is necessary to define death from legal level. Standard of death is a choice of value judgment and there are many factors need to be taken into consideration. The standard of brain death is more desirable from the perspective of biological technology, philosophy, and economics, while from the view of the public consciousness, standard of heart and lung is more intuitive and traditional. Judged on a comprehensive basis, China should adopt the standard of brain death and single model of brain death.