Research On The Right Of Organ--Analysis Of Organ Transplantation And Relevant Issues In The Law

Organ transplantation brings gospel to patients, but makes great impact to the law and social ethics. A new concept named the right of organ has been brought about with the changes of social science owning to the changes of natural science. The right of organ is an unprecedented concept; it is very difficult for us to include it briefly in the traditional civil law frame.The thesis divides into four parts. It studies the law nature of right of organ, subject and object, range and design of system on the operation of organ transplantation separately.The first part analyzes the law nature of the right of organ by introducing the states of the organ.The existence of the organ is not beyond the scope of following several kinds of states: the organ existing in the living body, the organ from body and the organ from corpse. First, it is about the organ existing in the living body, i.e. the organ inside citizens' body. The organ is element of personal rights because it is an inalienable part of body. Under this circumstance, the right of organ is included into bodily rights. Second, it analyzes the organ from body. In this case, the organ is not a part belonging to the donator, for it has lost the original function before the transplantation; hence, it is no more the element of personal rights. And, it is not belonging to the acceptor, either. The organ mentioned above subscribes to things regulated by real law, so the right of organ refers to a kind of property rights. At the end of the part, it studies the organ from the corpse. A man's death leads to losing his subject qualification as a natural person, so the corpse returns to natural things. As natural things, the corpse is regarded as one of objective realities, just in civilized society alike other natural things can be handled and abandoned at will for people, but it is really a kind of existing, breaking away from the thing and not again with subject qualification of life. Since the corpse is a thing, the organ from the corpse (no matter it has in the corpse or have outside the corpse) that contains to the corpse should also be a thing. As same as the organ excised in the body, organ that is taken from the corpses is a thing too. However, it should be paid attention that some powers of ownerships of the organ are limited. But this does not hinder us to make such a conclusion that the right of organ belongs to proprietary under this state. Generally, the right of organ is a right group, but not a kind of single independent new-type right, it's nature can be determined at the frames of current the civil law, i.e. the nature of the right of the organ which existing in the living body belongs to bodily right, and, its right attribute should be asserted as a kind of proprietary if it comes from the body or the corpse. As to this, we might as well call the former bodily right-oriented right of organ, and call the latter property-oriented right of organ.The second part describes the subject and the object to the right of organ. The subject of bodily right-oriented right of organ is the natural person oneself. The object of bodily right is either the natural person's personality or the whole of natural person's body, which pursues the completion of natural person's body. At this moment, its object can only be the object of bodily right. In other words, the object of bodily right-oriented right of organ is either the natural person's personality or the whole of natural person's body. The subject of property-oriented right of organ has two types. One is the organ extirpated from the donator but not embedded. The author views that the subject is the donator himself before being embedded, but once the organ is embedded, the subject is the acceptor. The other is organ from the corpse. The corpse is a thing, so the organ from it is also a thing. No doubt, the dead has no ownership of the corpse. His closely connected relatives share the joint ownership by obtain originally. Here, the organ is a thing, and the right of organ is a kind of property. S...