Legal Protection Of Donor Organ Transplants In China

Since the first successful organ transplantation in America in 1954, thousands of patients have been saved. But the donated organ, which is vital to the success, still sees a serious shortage. Various measures have to be taken to enlarge the number of donors so that more patients can be saved. However, while the recipient is saved, the rights and interests of the donor are often neglected, and some people even hurt or kill the donor on purpose to obtain the needed organ, which not only harms the interests of the donor but also diminishes the enthusiasm of donation and violates the legal principles of justice and equity. Thus the law, as a means of balancing social interests, should protect the rights and health of the donor as well as those of the recipient. After analyzing and comparing the laws on organ transplantation of other countries and regions, this thesis explores the legal nature of the organ and the standard of death and proposes some civil measures to protect the donor.Legislation on the organ transplantation, which is a new topic to the jurisprudential circle, should be put on the agenda as soon as possible. This thesis consists of three parts: the first part defines the concept, category and range of organ transplantation and analyses the theoretic and realistic significance of protecting the donor from the perspectives of jurisprudence and the insufficiency of law. The second part discusses the legal nature of the body and organ, the right of self-determination and the donor's right to choose the standard of death. This thesis concludes that the living organ in the body is the element of substantial personality while the detached living donor organ and the deceased organ are limited merchantable item, that the person has the right to decide on the donation of his organ and the standard of his own death—brain death or cardiac death. On the basis of the aforesaid, the third part lists the civil measuresof protecting the donor: guaranteeing the right of informed consent; ensuring the donor's health; limiting the identity of the living donor; guarding voluntary contribution of the deceased organ; giving compensation to the donor.