Legal Thinking On Organ Transplant And Donation

Organ transplant appears when the medicine develops to some extent. Such technology brings about not only evangel to most sufferers, but also many thoughts on law: how to define properly the nature of rights of a person to his organs? Does the organ belong to"Thing"when it separate from the body of the person? How to provide the legal nature of the corpse? Therefore it is necessary to do further research on such questions so as to conclude credible conclusions.This article adopts methods of history, comparison and logic, makes a view by focusing on"Thing"of civil law system, looks back the historical evolution of concepts of thing on civil law system, compares the said concepts of"Thing"in different countries and areas, and then analyzes the legal natures of organ separated from the body or the corpse.This article includes four sections: preface, the first chapter, the second chapter and epilogue.In the preface is the introduction of basic knowledge of organ transplant and evocable legal questions.In the first chapter is the foundation of civil law on organ transplant as the following five sections:In the first section is the summary of organ transplant, which defines the scope of discussion of this article and then points out the manners and approaches of the organ transplant.In the second section, the rights to the organ by a person are discussed and then it is shown that the person is entitled to donate his organ within the scope admissible by law. In the third section is the discussion of the legal nature of organ which is separated from one's body; the concept"Thing"is analyzed in four periods, such as the remote ancient age, Roman law period, French civil law period and German civil law period by a clue of history evolution of the concept of"Thing"of civil law system; and opinions on"Thing"by our scholars are reviewed, on basis of which a conclusion is made:"Thing"is one of property which is possessed by people and it shall have such attributions as being controllable, utilizable, scarce, current and possessive. No organ separate from one's body falls into person category or property category.In the fourth section, this article discusses the legal nature of the corpse, and by an analysis of all relevant theories, points out that the corpse is not a"Thing"and similar to an organ separate from one's body on legal nature.In fifth section, the organs donation contract is discussed and compared with donation contracts in general, and hence the particularity of the organs donation contract.In the second chapter the legislation of organ transplant is discussed, of which there are three sections as follows:In the first section is the comparison of legislation modes on organ transplant of all counties. There are mainly two modes, general and organ-particular. This article considers that uniform legislation one shall be taken by our country.In the second section, an analysis is made on the current status of legislation on organ transplant in our country, and it is shown that the current legislation is not fit for practice, mainly in shortage of uniform legislation, criteria on behaviors of medical institutions and medical personnel and definite death standards.In the third section, there shall be six basic principles for our future legislation on organ transplant: principle on knowing and agreement, principle on prohibition of organ dealing, non-preference principle, principle on encouragement of organ donation, principle on publicity and fairness of distribution of organs and principle on technical admission.Epilogue.