The Legal Research On The Deceased Organ Donation

The deceased organ donation is a behavior of the public good. As the subject of this behavior,the donors have the right to decide to donate the dead organ. The donors includ the dead themselves and their close relatives.The dead people enjoy the right to donate their body organ before their death because of the extensive protection of the personal interest for the natural persons.And the close ralatives,who are able to donate the dead organ,are due to the ownership of the dead organ.The decision of the dead themselves gives priority to their close relatives,in order to fully respect the true intention of the dead.The donors must have certain qualification to make effective intention of donating organ.The donors are usually required to have the full civil capacity,because only the full civil capacity can clearly understand the nature and effect of their own behavior,and are able to take the legal consequences of their donation behavior.The special nature of the deceased organ donation is that the object of its behavior is the organs of the deceased,which relates to the identification of the deceased and the deceased organ. Traditional cardiopulmonary death criteria have been gradually abandoned by the national legislation and the theory. The theory of brain death,which is more scientific and recognized by the medical profession,can not be universally adopted by our such a relatively traditional country. Therefore, we can take cardiopulmonary death criteria-based as the identification of the deceased, supplemented by the brain death standard, while we should give the natural person to the right to choose these two styles, which makes it easy to get the public acceptance, as well as to develop the organ donation cause.To the identification of the deceased’s organs, most countries have adopted a uniform legislation model, namely, to make a unified human organ donation and transplantation law to adjust all organ donation and transplantation behavior.Chinese Human Organ Transplantation Ordinance also adopted this legislative mode, which saved the cost of the legislation and is more applicable. The main purpose of the laws and regulations on the deceased organ donation is to protect the legal rights and interests of the main parties in the donation behavior, so that the organ donation behavior can be accepted by more people,which is why the legal rights and obligations of the donors and medical institutions should be clearly defined. Taking the legislative values into account, laws should focus on the protection of the rights of donors, and adjust medical institutions’relationship by making the burden of obligation. This is because the law should respect and compensation for such noble acts that the donoers give up their own personal interests completely for others. Responsibility is the the legal consequences the behaviors should bear when they breach the obligation, therefore, a clear division of the main responsibilities can protect the parties to better exercise their rights.Here the civil liabilities includ breach of contract and tort liability in the deceased organ donation. A prerequisite for liability for breach of contract arises from the agreement between the donors and the medical institutions,which is called deceased organ donation contract.And this liability embodies the legal consequence of the breach of a contractual obligation or non-performance.Another civil liability is the tort liability,which is bored mainly in the case of the breach of statutory obligations.The civil liability is not detailed in Chinese Human Organ Transplantation Ordinance which is not helpful for the adjustment of civil legal relations of the deceased organ donation, and also make protection of the main body’s rights in the embarrassing situation,without legal basis..