Research On Series Of Civil Law Issues Of Live-donor Organ Transplantation

Live-donor organ transplantation is the result of the development of medical technology to a certain extent.So far it has become the gospel of a lot of critically ill patients.But in the well-being of mankind,it also poses challenges to the civil law.For example,if the minors can become the doners of live-donor organ transplantation? Should we limite the donor and receptor of organ transplantation between people who are in certain relationship ? What's the legal attribute of the human organs ? If we can realize the commercialization of human organs? What's the legal basis for such practice that donor as the main personality takes donation to Corporeal carrier of personality,how can we eliminate the illegality of medical institutions's behavior who implement gathering and implanting human organs?etc.But currently,it has shortcomings to answer such questions in theorists which make it difficult to solve practical problems fundamentally.Therefore,it plays an important role to give a definite answer to the above questions in civil law for improving our live-donor organ transplant legislation.Using the methods of comparison and illustration,this paper illuminates the civil legal relationship of the live-donor organ transplantation adequately from the angle of its nomological foundation,further discusses its legal attribute and the question of how to protect the donor and receptor in organ transplantation.And then advances some advice about the improving of live-donor organ transplantation while combining domestic and foreign relevant legislation status and on the basis of understanding the defects of the legislation of live-donor organ transplantation in China.This paper is divided into four parts.The first part,summarizing on live-donor organ and organ transplantation.This part mainly introduces the iatrical and legal definition of live-donor organ and organ transplantation.It also advances the definition in this paper clearly while presenting the different legal notion in different regions clearly.And then talks about its historical development and the ethically comer by a brief introduction.Finally accounts for the significance of establishing the system of live-donor organs transplantation.The second part,the nomological foundation of live-donor organ transplantation.This part discusses the nomological foundation of each subject of carrying through organ transplants according to the classification of various subjects of live-donor organ transplantation,illuminates that the legal basis of live-donor organ donation is that the donor owns the right of body which can dominate himself;the medical institutions can implement the removal and implantation behavior which are illegal clearly because no matter the behavior of removal or implantation is a lawful action and accords with the requirement of the public order and good customs,and also because of the victim's informed consent;receptors are able to accept the original personality of the donors as the cartier is due to his legally right of life and health.The third part,the civil legal nexus of live-donor organ transplantation.Firstly,this paper defines the subjects of live-donor organ transplantation into donor,receptor and medical institution,and analyses deeply about the qualification of human being or organization which can be its subject.Secondly,this paper focuses on the object of the live-donor organ transplantation that is human organ,and then types of the live-donor organ to demonstrate, detailed introduces various related theories and finally contacts the legal property with the state of whether it is deviated from human body,demonstrates that the live-donor organ which is in the human body is a part of personality,but while it is deviated from human body,it is a part of personality in Autograft and become substance in Allograft.Finally,this section introduces briefly in each subjects' rights and obligation in live-donor organ transplantation.The fourth part,some legislation thinkings about live-donor organ transplantation.This part comments on the legislation of live-donor organ transplantation in China and advances some ideas.Firstly,briefly and selectively introduces some legislation status in quo about live-donor organ transplantation in and out of China,expatiates on some of the important and excellen legislations;and then focuses on the defects of the legislation of live-donor organ transplantation in China,the defects which points out including absolutely free of organ donation is not conducive to the expansion of the source of organs,the donor's random right of revocation would damage the benefit of the receptor,the limits to the receptors are illegitimate,the vulgar prescript on civil responsibility is not enough to adjust each side and doesn't explain the legal consequence of invalid organ transplantation.Finally,on the basis of analysing the major shortcomings and learning from the legislation of the international organizations,foreign countries and Chinese outside regions,this paper brings forward somes advices to consummate China,s live-donor organ transplantation law,including should combine the law of live-donor organ tansplantation with cadaver-organ transplantation, enlarge the scope of acceptor aptly,set up the inspirit system to donors,definitude the subjects' status of civil obligation of donors and acceptors and prescribe the consequences of invalid organ transplantation.This paper focuses on the second,third and the fourth part which made the legal attribute of live-donor organ clearly,explains our civil law theory for live-donor organ transplantation implemented by the various subjects,and gives some corresponding suggestions to improve the legislative defects for live-donor organ transplantation.This paper still has some difficulties.At present,most of the domestic scholars take the live-donor organ transplantation as a incidental part of cadaver-organ transplantation,thus reference to the literature mostly just gives a brief civil law issues for live-donor organ transplantation and there isn't detailed demonstration for the corresponding problems. What'more,when it turns to the legal attribute of live-donor organ,various theories has certain truth,but failed to clarify the nature of this issue.The innovation of this research mainly concentrate in the following aspects.First,in order to make legal attribute analysis for live-donor organ,it will distinguish live-donor organ departed from to this which aren't separated with human body,the author thinks it should distinguish different kinds of live-donor organ transplantation so as to give different definitions to legal attribute for them,that's to say we should take it as a part of the element of personality in allograft,and belongs to substance while it change to allogeneic transplant. Second,the donor and receptor should not be limited in certain blood relationship between relatives.We must allow live-donor organ transplantation between people who have unrelated blood relationship under certain conditions and make it legal.Third,incentive institution system should be builded for live-donor organ donation,we can establish a fund to solve the medical expenses problem which caused in the process of organ transplantation and provide medical security for the donor after donation.Etc.Fourth,the civil liability should be undertaken not only by the medical institution but also by the donor and receptor,they have the same importance,therefore we should define clearly various civil liability undertaken by donor and receptor as long as the medical institutions appearing in live-donor organ transplant process.Live-donor organ transplantation causes many problems to civil law,and most of them belongs to the category of profound theory,as the limite of my knowledge and length of the acticle,several deficiency still exist.First,I haven't discussed the problems of live-donor organ transplantation comprehensively in civil,and just choose some points to make a shallow analysis and verification.Second,because of the limited data,the best legislation abroad can't be mastered completely which make my introduction and reference undeeply. Third,discussions of the legislation and feasibility for the live-donor organ transplantation is just theoretical opinions,when it turn to practice,if it can be a practical and realistic approach is still a problem.