A Study On Organ Donor’s Self-determination Right

With the development of medical technology, organ transplantation are increasingly used in patients’medical treatment to help them regain health and prolong lives, but the organ transplantation is a very complex technology, it involves many fields, not only medicine, but also law, ethics and so on. The analysis of self-determination from the view of civil law is helpful for the development of organ transplantation and the protection of people’s legitimate rights. Human organ is a necessary precondition of the implementation of organ transplant surgery. Currently most of the organs used for transplantation are come from donations, so the study of the legal issues in the process of organ donation, especially the protection of the rights of organ donors is essential. Existing research on civil law issues in organ transplantation are concentrated in the origin, distribution of organs and the construction of relevant laws. Most research analyze on the basis of assumption that organs have been donated, while less attention to the donor’s rights in the process of organ donation. Articles involves donor’s right are study from the perspective of the rights to one’s life and health or their body rights, and always discuss together with the recipient’s rights, rarely related to the donor’s self-determination. In fact, organ donors have self-determination rights. The self-determination right is personality right, it should be protected by law as well as the right to one’s life and health. In the space of private law, people have right to make decisions about issues related to their own interests based on their own will. The exercise of the organ donor’s self-determination should be pay attention.This article focus on the rights of organ donors, discuss the exercise of the organ donor’s self-determination right from the perspective of donors and the State regulation. This paper is comprised of the preface, the conclusion and the main body made of four main parts:Chapter One is an overview of human organ donation, which focus on the legal attributes of the human organs and legal nature of organ donation. As object, there are controversies on the organ’s legal nature, which are about personality right or the real right. The article analyze the nature of organs in human body, organs out of human body and organs in dead body, point out that organs belongs to the scope of personality right, which provides a theoretical basis for the practice of the organ’s self-determination right. As for the legal nature of organ donation, regard donation as quasi-legal act, provides a legal basis for the people who has not full capacity to be the subject of the organ donation.Chapter Two described the theoretical basis of organ donor’s self-determination right. The self-determination as well as the rights to one’s life and health belongs to personality right, it’s basic human rights, in the exercise of the right should be limited by respect for human life, health and the principle of freedom. People have autonomy, they can make choices according to their individual will. We must respect one’s dignity and autonomy, so we should respect one’s self-determination right. People can decide to donate their organs out of their goodness, but life is unique to everyone. Besides, one’s physical interest relate to his personality, so the organ donation cannot cause donor’s serious injury or even death. The development of organ transplantation technology and the scarcity of organs are the basis of the exercise of self-determination right in reality.Chapter Three discusses the specific issues in the exercise of donor’s self-determination right. This chapter identifies the subject of organ donation, and analyzes the criteria of their "consent" ability, point out that the competent adult have right to decide denote their organs or not by themselves. The "consent" ability of incompetent adults and minors should be determined according to specific situation. Some restrictions must be considered in the exercise of self-determination right. The doctor has duty to disclosure information and the donor should be totally informed. The donation can not be contrary to the legal and ethic.Chapter Four points out organ donors who decide to denote their organs also have rights to refuse and to rescind according to their wishes. In addition, the protection of the organ recipients’interests also should be pay attention so that the interests of both sides can achieve a relatively balance. As a personality right, self-determination right in organ donation should be respected and valued, but in the process of organ donation, the purpose of the right is to protect the interests of donors. Therefore, we must respect self-determination right on the basis of safeguard the interests of the donors.