Legal Issues Of Transplantation Of Decedent’s Organs

With the development of modern medicine, organ transplantation has become an important means of saving organ failure patients. In aspect of organ transplantation of deceased, legislation of many countries pay attention to the number of organs, but they ignore the protection of the interests of the deceased, failed to implement the principle of priority donor interests. In this paper, in order to protect the interests of the deceased, through legislation, jurisprudence and theoretical comparison of major countries in the two legal systems, I provide my own ideas for the improvement of organ transplant law.First, this article will describe the current status of China’s organ transplant through the data. Similar to the situation around the world, our country has a shortage of human organs. Current "Human Organ Transplant Ordinance" has set up some comprehensive and simple rules for China’s organ transplant, covering intention and form of organs donation, as well as organ transplant program and violation of the provisions of the law. In addition to the "Human Organ Transplant Ordinance", there are local laws and regulations to regulate human organ transplants. But levels of effectiveness of these regulations is not conducive to protecting the interests of the deceased.Thereafter, the article discuss legislation, jurisprudence and legal theory of major countries and regions form two legal system for organ transplantation from four aspects. Legal protection of personality rights of and nature of the deceased’s body was the theoretical foundation to discuss the legal relationship between organ transplantation. On the position of the protection of personality rights of the deceased, we will discuss the legality of organ transplantation as standard elements of death and organ donation intention.As to the legal nature of the body, with the exception of Japan clearly defined body was inheritable things, the laws of major nations or region did not clearly define. Beside "Things theory" and "Personality theory", there is a new "organ right theory ". Mainstream theory has not yet formed. For the protection of personality rights of the deceased, the German jurisprudence determined the moral rights of the deceased, while the United States break "the dead can’t hear", the principle of the common law, in the form of state legislation that giving the deceased personality right in some respects.The deceased protection rules change from providing direct protection for rights of the deceased, to only providing indirect protection of the deceased by giving close relatives the right to appeal. Many countries or regions establish a single standard of brain death in organ transplantation through legislation. There are some countries allow traditional death criteria and brain death standard parallelly exsit.As to the organ donation meant, two legal provisions have the same idea that,beside the dead, the next of kin can donate the dead’s organs when the deceased does not expressly refuse to donate organs.Finally, I put forward some proposals for the future brain death and organ transplant legislation of our country. To protect the personality interests of the deceased, the system of partial capability should be introduced.Personality rights are given to the deceased, identified the dead body as personality attributes. For brain death legislation, our country can learn from the strict binary standard. In terms of donations mean, the next of kin of the deceased could make the donation meant while the meant of the dead is missing, but they should not be denied a legitimate means of the dead. Many countries ncourage organ donation due to the shortage of human organs. From the angle of protection of the deceased, examination and improvement of the system of organ transplant have undoubtedly a positive meaning for implementing the principle of priority of donor interests and regulating organ transplant.