A Study Of The Several Legal Problems On Organ Transplantation

The organ transplantation which is known as the “the summit of medicine in the21stcentury” has now become an effective means of treatment of organ failure.Former patients whose lifespan have to end by the organ failure can extend their livesdue to this emerging technology. Our organ transplantation business entered clinicalin the1960s. Along with the continuous progress of the medical cause, the organtransplantation business is under rapid development in China, and the number of thehospital which carries out the transplant operation significantly increases, making theorgan transplantation increasingly become the conventional surgery. Now, China hasbecome the world’s second largest transplantation power and the transplanttechnology has entered the forefront of the world. However, the science andtechnology is a “double-edged sword”, the organ transplantation is no exception.When it is bringing the Gospel to the people, it also is raising a lot of considerationon the law. Such as: the organ transplantation should take what kind of legislation?What are the basic principles of the organ transplantation legislation should befollowed? How to establish the “brain death” standard and how to perfect the systemof the organ transplantation? These problems have not been solved timely andeffectively, which not only impeded medical progress, but also brought manyunstable factors to the community. From a civil law point of view, this paper makes afurther exploration on legal issues of organ transplantation.Trough the comparative analysis method, logical analysis method and caseanalysis methods, with the help of the school library collection, the Internet cases, therelevant literature and journals, this paper starts from the concept of the organtransplantation to tell the essentials of legal relation of the organ transplantation andthe history and current situation of the organ transplantation. This paper describes thelegislation in some countries whose legislation is mature by comparatively analyzingthe current legislation of the organ transplantation in foreign countries, learning fromforeign experience to get revelation for our organ transplantation legislation. Analyzing the lack of our legislation: for example, absolutely gratuitous is notsuitable for today’s current situation of the organ transplantation and is not conduciveto ease the serious shortage of the donor. The legislation should focus on theprotection of the donor of the organ transplantation, in the multiparty body involvesthe transplant surgery, only the donor is the unique main body who doesn’t make aprofit. And our country hasn’t established a unified allocation mechanism andnetwork for the organ transplantation.“Human organ transplantation regulations” is the main regulation which ispromulgate in2007by the State Council to regulate the human organ transplantation.After analyzing the related legal issues of the organ transplantation in our country andlearning some legislative experience form some developed countries, this paperprovides some suggestions to perfect our organ transplantation legislation: the first isfor the selection and establishment of the legislative model of the organtransplantation; appropriate to expand the scope of the living organ donors; theestablishment of the “brain death” standard; establish the incentive system of livingorgan donation.In our country, due to the shackles of feudal ideas, the ideology is conservativeand thinks that “death should stay the whole corpse”. And the legal system in theaspect of the organ transplantation is imperfect, so many people do not understand thesituation of the organ transplantation, and due to the donation channel is not smooth,so many volunteers who has the will of donation don’t know where to register for thedonation, which seriously hampered the development of the organ transplantation inChina. The purpose of this paper is to analyze the relevant legal issues and putforward targeted suggestions, hoping to make the most meager strength for thehealthy development of China’s organ transplantation.