Incentive Principle. Of The Right To Human Organs And Organ Donation

With the fast development of organ transplantation technique, lots of patientssuffering from severe diseases which were incurable before could now be cured byorgan transplantation. However, since the healthy organs have to be removed fromother human bodies, the development of this treatment inevitably faces a series oflegal problems. What's the legal nature of human organs? Who has right of controlover human organs? How could people legally get human organs? What should bethe guiding principle in the legislation of human organ transplantation?In this article, the author applied comparative and deductive methods. Theauthor started from analyzing the juristic act of organ transplantation, explored thelegal nature of the human organs used for transplantation and the rights related to theorgans. The author has also explored laws on organ transplantation in other countries.Then based on her exploration, the author put forward her suggestions on how toestablish a law system on organ transplantation in China.The article is divided into four chapters.Chapter One Analysis on the Juristic Act of Organ TransplantationIn this chapter, after analyzing the juristic act of organ transplantation, theauthor put forward her opinion: the transplantation of organ is divided into threedifferent acts, the first is the act of removing the organ, this is the implementation actof organ donation;the second is the act distribution of the organ, which is thedistribution of rare social resources;the third is the act of plantation of the organ,which is a medical act.Chapter Two Organ Donation and Analysis on the Rights related to HumanOrgansIn this chapter, the author pointed out that organ donation is the only legalsource of human organs for transplantation, and organs that could be used fortransplantation can be divided into four categories: organ in a living human body,organ that has been removed from human body, organ of human embryo, and organin a dead human body. Then, based on analysis of civil law theory and laws in otherscountries, the author further analyzed the legal nature of the different kinds of organsand pointed out that natural person's right of control over his own body and organs isa function of his personal rights;organs that have been removed from human bodyare ordinary property, the ownership right should belong to that person;organs fromhuman embryo are special property, the right of control should belong to thepara-mother;as for organs on dead human body, the disposition should be inaccordance with the will of that person.Chapter Three Analysis on Problems in ChinaIn this chapter, the author analyzed the problems and the causes of theseproblems in organ transplantation in China.Chapter Four The Encouragement Principle in Legislation on OrganDonationIn this chapter, the author suggested that the principle of China's futurelegislation on organ donation should be a principle of encouragement. The authordisagreed with the opinion that people should be allowed to sell their organs. At thesame time, the author suggested that since donation of organs could benefit otherpeople, the donator should be reasonable compensated. Then the author went on insuggesting and designing the establishment of a complete legal and administrativesystem in governing the donation of human organs.