我国《人体器官移植条例》评析

我国《人体器官移植条例》对有推定同意权的“亲属”的限定范围过窄，阻却了第二、第三顺序亲属实施推定同意的权利；临床应用与伦理委员会未排除实施器官移植专家的参与，可能影响论证结果的客观性，且伦理审查时限不明；在违反《条例》的法律责任中，排除了公民生前未表示不同意捐献人体器官且其家属也未表示同意捐献尸体器官，而对其实施器官摘除的情形。缺失了医疗机构及其医务人员在明知器官来源不合法或实为买卖器官却加以利用并实施器官移植的法律责任。建议尽快根据《条例》制定具体的实施细则，以确保《条例》的正确实施。

The comment on The Regulations of human organs transplantation in china

The range of the field of the relatives who have the right of presumed consent in the regulations on human organs transplantation of china is too narrow. As a result, it deprives of the right of the second-degree and the third-degree relatives; it will affect the objectivity of the result, if the clinical application and the law ethics committee didn＇ t exclude the experts＇ participation who implement the organ transplantation, and also the time＇ s restriction of the ethics review is not clear; The legal responsibility of violations against the regulation excludes the case that the body organs having been removed without having organs owner＇ s dissent of donating the body organs when he / she was alive, and without consent of the organs owner＇ s family. There is no legal responsibility to limit the medical institutions and the medical staffs, when they know the organs from the illegal channels or form trading, but still used them. We recommend that the national health department should as soon as possible develop specific implementation details according to the ＂Regulations＂, to ensure the correct implementation of the ＂regulations＂