试论人体器官的法律属性

随着器官移植技术的发展,器官供体短缺日益成为制约我国器官移植事业发展的＂瓶颈＂,通过立法规范器官移植,扩大器官供体来源势在必行。对此,需要解决的首要问题是界定人体器官法律属性,在此基础上才能进一步确定人体器官获取、利用及移植的基本规则。     

人体器官移植的法律风险及原因分析

随着器官移植患者需求的不断攀长，而供体器官又极其缺乏，加之我国现行器官移植方面的法律法规与相应的管理规范不健全，如何依法、依规地开展人体器官移植，不被非法分子利用，是医疗机构乃至社会面临的严峻挑战，本文首先论述了我国人体器官移植存在的法律风险主要包括：一是器官移植对象审查不谨慎，间接推动人体器官非法交易；二是器官移植手术排序不透明，违反法律法规；三是摘取供体器官制度不健全，容易引发诉讼等。然后对其原因进行了深入分析，指出社会认识不足、医疗机构重视不够、器官来源标准和程序不规范是其影响因素。     

关于扩大人体器官移植供体来源问题研究——兼论《人体器官移植条例》之配套与完善

随着人体器官移植技术的推广运用,活体器官紧缺已成为重要瓶颈问题之一。我国关于人体器官移植立法已上升到行政法规层次,但关于器官供体来源的规定却过显保守和简单,有必要从确立脑死亡标准,构建器官捐献法律规制体系,扩大活体器官受体范围,细化活体器官供体主体资格,建立器官捐献鼓励与补偿机制等方面进行重新考量、设计。     

刑法中的人体器官犯罪——对《刑法修正案(八)》第三十七条的理解

随着器官移植手术的迅速发展与成熟,许多以前被认为绝症的疾病得到救治。但器官受体与供体数量差距悬殊,器官供体的不足造成器官移植市场混乱,客观上导致了器官买卖黑市的产生。随着黑色产业链的发展,盗窃人体器官、组织贩卖人体器官、欺骗他人捐献器官等非法行为时有发生。鉴于人体器官犯罪的形式呈现多样化、复杂化的趋势,严重威胁人民群众的生命健康安全,严重侵害了我国对公共卫生的管理秩序,《刑法修正案(八)》第三十七条规定,将组织贩卖人体器官等行为犯罪化,准确理解和把握该项内容的立法精神对于司法实践具有指导意义。     

论人体器官移植中的自我决定权与国家义务

在医学上,人体器官移植是指通过手术或其他方法,将某个健康器官的全部或部分植入接受人的身体,代替其已不可逆损伤或衰竭的器官,从而使接受人获得健康器官的生理功能,其中,器官提供方为供体,器官接受方为受体。作为实现生命健康权的一种身体处置形式．器官移植必须体现人的自主性才能具备尊严的正当性．即体现供体和受体的自我决定权。     

器官移植中供体的民事法律保护

在器官移植中,与受体相比,被移植器官的提供者(供体)更应该受到法律的保护。从民事法律上对供体应从以下四个方面加以保护,即供体的知情同意权、健康获得保障的权利、对活体器官供体的限制、获得补偿的权利等。     

器官买卖“黑市”大调查

1：100——这是我国目前器官移植中＂供体＂与＂患者＂的比例。供不应求之下,只有1%的患者能得到供体,保住生命。由此,一些＂黑中介＂应势而生,架起了＂患者＂与＂活供体＂之间的桥梁。巨大的市场需求催生出了活体器官买卖的＂黑市＂。     

论人体器官移植中的自我决定权与国家义务

在医学上，人体器官移植是指通过手术或其他方法，将某个健康器官的全部或部分植入接受人的身体．代替其已不可逆损伤或衰竭的器官，从而使接受人获得健康器官的生理功能，其中．器官提供方为供体。器官接受方为受体。作为实现生命健康权的一种身体处置形式．器官移植必须体现人的自主性才能具备尊严的正当性，即体现供体和受体的自我决定权。所谓自我决定权，就是“自己的私事由自己自由决定的权利”，     

论人体器官移植供体经济权利法律保护体系构建——兼议我国人体器官移植立法之不足与完善

为扩大人体器官来源,建立器官供体社会鼓励、激励机制,确立和保护其合法经济权利是必要的。器官移植手术中器官供体所享有的经济权利主要有损害补偿请求权、医疗保障权、社会优抚权等。其中,确立损害补偿请求权和医疗保障权是对人体器官供体的现实激励手段,而社会优抚权则既是现实激励手段,又是预期激励手段。     

浅析组织出卖人体器官罪

近年来,器官移植技术的发展给一部分重症患者带来了福音,但另一方面,由于进行器官移植的供体远远不能满足需要器官移植的患者,故在社会上出现了盗窃人体器官、组织贩卖人体器官、欺骗他人捐献人体器官等违法犯罪行为,并逐步呈现多样化、复杂化的趋势,在某些区域已经严重危及人们的生命健康安全。有鉴于此,我国国家立法机关在《刑法修正案(八)》第37条增设了有关器官犯罪的规定,即组织出卖人体器官罪。此罪的入刑为我国有效惩制、打击买卖人体器官犯罪提供可靠的刑法依据和罪行标准的同时,凸显了我国对人权的尊重和保障。     

"Body property": challenging the ethical barriers in organ transplantation to protect individual autonomy

One of two articles related to the current organ shortage, this article advocates the need for legislation to recognize organs and tissues separated from the body as a distinct category of personal property. After addressing the legislative history of organ procurement and psychological barriers to donor consent, the article examines the importance of separating the lifetime rights of ownership in our own bodies from postmortem rights. Ultimately, the author proposes a futures market approach to this problem in which individuals before death, or surviving family members after death, are permitted sell the decedent's organs in a private contract.     

论人体器官移植的现代民法理论基础

器官移植是为医疗目的由器官供给人的捐赠行为、专门医疗机构器官摘取的协助行为和植入器官的治疗行为等构成的相互独立、相互联络的关联结合行为。作者从现代民法的角度 ,深入剖析了人体器官移植的理论基础 ,认为活人是具有法律人格的权利主体 ,故具有处置其人格利益的自己决定权 ;遗体和人体器官是物权法的客体 ,归属于生前的本人和继承法理下的其他人 ,在法律限制流通的范围内可由权利人进行处分 ;医方摘取器官行为只是医疗援助行为 ,器官植入行为可适用医疗服务合同法理 ;因存在利益衡量和公序良俗原则下的受害人知情同意 ,所以移植器官行为是阻却违法的行为     

Forced organ donation: the presumed consent to organ donation laws of the various states and the United States Constitution

The issues presented in this Comment pertain to whether there are substantive limits imposed by the Fourteenth Amendment upon the state legislatures which would defeat the recent, tentative steps of many states to pass laws authorizing presumed consent to organ donation. The final and perhaps least effective presumed consent law creates a presumption of consent to organ donation. The potential organ donor makes the choice whether to donate or not during his lifetime. This form of the presumed consent law would probably have the least impact on increasing the number of available donor organs. It permitted the coroner to harvest the eyes and corneas of deceased individuals if the coroner was unaware of objections from either the decedent or the family of the decedent. Presumed consent statutes should be found unconstitutional because they infringe upon a family's property interest in a deceased relative's corpse. However, due to the family's property interest in a relative's deceased body, as set forth in the next section, the result is that presumed consent statutes are unconstitutional. In order to find the presumed consent law unconstitutional, the Court would have to find that either: (a) the Fourteenth Amendment's liberty component included the family's right to determine what happens to a relative's body after death, or (b) that the property component included a vested state law property interest in the dead body.     

National Association of Medical Examiners position paper on the medical examiner release of organs and tissues for transplantation

The medical examiner community plays a key role in the organ and tissue procurement process for transplantation. Since many, if not most, potential organ or tissue donors fall under medicolegal jurisdiction, the medical examiner bears responsibility to authorize or deny the procurement of organs or tissues on a case-by-case basis. This responsibility engenders a basic dichotomy for the medical examiner's decision-making process. In cases falling under his/her jurisdiction, the medical examiner must balance the medicolegal responsibility centered on the decedent with the societal responsibility to respect the wishes of the decedent and/or next of kin to help living patients. Much has been written on this complex issue in both the forensic pathology and the transplantation literature. Several studies and surveys of medical examiner practices, as well as suggested protocols for handling certain types of cases, are available for reference when concerns arise that procurement may potentially hinder medicolegal death investigation. It is the position of the National Association of Medical Examiners (NAME) that the procurement of organs and/or tissues for transplantation can be accomplished in virtually all cases, without detriment to evidence collection, postmortem examination, determination of cause and manner of death, or the conducting of criminal or civil legal proceedings. The purpose of this position paper is to review the available data, the arguments for and against medical examiner release, and to encourage the release of organs and tissues in all but the rarest of circumstances.     

Fifty years of organ transplants: the successes and the failures

More than fifty years have now passed since the first successful human organ transplant. During that time, substantial progress has been made in both surgical techniques and immunosuppressive drug therapy. As a result, transplant success rates have improved dramatically, and thousands of recipients of kidneys, hearts, livers, and lungs have been granted both longer and healthier lives. At the same time, however, many more thousands of patients have died while waiting in vain for a cadaveric donor organ to become available due to a severe and persistent shortage of such organs. That shortage, in turn, is directly attributable to the National Organ Transplant Act of 1984, which proscribes payment to potential organ donors, even if that would increase supply. This atavistic policy and the shortage and deaths it has spawned provides a stirring example of the tendency for public policy to lag behind technological advancement, particularly in the medical field. But the tide of medical opinion may be turning on this issue, and some form of donor payments may soon emerge.     

Non-Heart-Beating Organ Donation: A Defense of the Required Determination of Death

The family of a patient who is unconscious and respirator-dependent has made a decision to discontinue medical treatment. The patient had signed a donor card. The family wants to respect this decision, and agrees to non-heart-beating organ donation. Consequently, as the patient is weaned from the ventilator, he is prepped for organ explantation. Two minutes after the patient goes into cardiac arrest, he is declared dead and the transplant team arrives to begin organ procurement. At the time retrieval begins, it is not certain that the patient's brain is dead or that cardiac function cannot be restored. Procurement follows uneventfully, and two transplantable kidneys are retrieved .     

The retina in forensic medicine: applications of ophthalmic endoscopy: the first 100 cases

The retina reflects a variety of diseases in the living patient. However, the retina is not routinely examined in deceased persons, and therefore it is unknown if routine retinal examination would be a useful adjunct to the forensic autopsy. To examine this issue, the retinae of routine medical examiner cases were examined utilizing an ophthalmic endoscope. The results of the first 100 examinations are reported. Specific attention was given to changes that reflected the postmortem interval, the development of petechiae as related to cardiopulmonary resuscitation, and the association of retinal hemorrhages to subconjunctival hemorrhages. The procedure was helpful in cases of suspected shaken baby syndrome, exsanguination, and carbon monoxide poisoning and in cases with sudden increased intracranial pressure (Terson syndrome). It appears that lividity patterns exist in the retina, and this may be potentially useful in determining body position after death. Some natural disease processes, such as hypertension, were also identified. Finally, the utility of the ophthalmic endoscope as a means of circumventing the problem of corneal clouding is discussed, and ideas for further research using this technology are presented.     

Patient termination of a life-sustaining medical device: Suicide or natural death?

Medical technology has made tremendous strides in extending the lives of patients who have suffered organ failure. Machines can now replace the function of the kidneys, the heart, and other vital organs. Much has been written about a patient's right to refuse or direct the withdrawal of medical treatment, especially at the end of life, under the guise of “death with dignity.” However, little attention has been paid to the situation where a patient elects to deactivate their life-sustaining medical device without a physician's involvement. This raises the challenging question of whether the patient's manner of death should be classified as suicide or natural. Surprisingly, common law, statutes, medical ethics, and public health practice are not in alignment on the answer. This article will explore the ramifications and far-reaching impact that such divergence has on the survivors and the medical community, as well as recommend corrective actions and practical approaches for the medical and legal practitioner.     

Malpractice issues in heart transplantation

As organ transplantation procedures become accepted as standard medical practice, it is anticipated that the frequency of liability claims against transplant care providers will increase. This article examines current statutory and common law analyses of malpractice issues in transplantation, with particular attention given to issues of informed consent as they arise both for the organ donor and donee.     

Brain Death - Too Flawed to Endure, Too Ingrained to Abandon

The concept of brain death has become deeply ingrained in our health care system. It serves as the justification for the removal of vital organs like the heart and liver from patients who still have circulation and respiration while these organs maintain viability. On close examination, however, the concept is seen as incoherent and counterintuitive to our understandings of death. In order to abandon the concept of brain death and yet retain our practices in organ transplantation, we need to either change the definition of death or no longer maintain a commitment to the dead donor rule, which is an implicit prohibition against removing vital organs from individuals before they are declared dead. After exploring these two options, the author argues that while new definitions of death are problematic, alternatives to the dead donor rule are both ethically justifiable and potentially palatable to the public. Even so, the author concludes that neither of these approaches is likely to be adopted and that resolution will most probably come when technological advances in immunology simply make the concept of brain death obsolete.