| Summary: | 碩士 === 東吳大學 === 法律學系 === 99 === As a result of a long period of time testing and
improving, organ transplantation finally has become a
feasible medical treatment in the twentieth century, and
this is undoubtedly great news for patients who are
suffering from severe organ failure. Because of technical
limitations, currently the human organ donators are still
the main source of transplantable organs; the small
number of donators has been a common problem faced by
every country all around the world. Various measures taken to increase the donation rate, however, have raised some
constitutional concerns.
The human dignity is considered the fundamental value of a human being, which is to prevent a human being from being
objectified and becoming an object. Although human organ
transplantation involves using human organs, which causes
the concern of treating human beings as medical tools, the core content of the human dignity is autonomy and
self-determination and, provided that the personal
autonomy of the donator is ensured, human organ
transplantation does not necessarily contradict the
protection of the human dignity. Since the human dignity
is the core value of a constitution, a governmental
authority must be involved in the human organ
transplantation affairs, based on the protective
obligation of the state, in order to prevent any immoral
actions and to ensure all rights of both the donor and the recipient.
Human organ donation can be sorted into two types: live
organ donation and cadaveric organ donation. Among them,
the prerequisite of cadaveric organ donation is the death
of the subject. However, in order to increase the success
rate of transplantation, the affirmation of brain death
has replaced the conventional way of the affirmation of
death. The important topic that cannot be ignored is, that whether the new way, affirmation of brain death, conflicts the right to live that is protected by the constitution.
More specifically, the questions of how to define brain
death, how to perform the process of the affirmation of
brain death and how to combine it with organ
transplantation, are the points that this thesis focuses
on. In addition, based on the thread of thought about the
protection of personal autonomy, the organ donor’s
decision of whether to donate the organ is one of the
rights in the constitution and should be protected. The
Doctrine of Informed Consent is one important part of the
protection of autonomy, and is also applicable in organ
transplantation. Besides, Regulation on Human Organ
Transplantation in Taiwan has many restrictions on the
decision making about the donation, including the
recipient, the donor’s age, donated organ and so on, so
that the current regulation should be discussed. Lastly,
before the abolishment of death penalty being taken into
practice, condemned prisoners are still one of the sources of human organ transplants in Taiwan, but the autonomy of
the decision making and the process of taking the organs
from the donors are being questioned by other countries,
so that this issue should be examined.
In conclusion, based on the constitutional viewpoint, this thesis aims to bridge the gap between the rights of the
donors and recipients, and to bring forward some opinions
different from the current regulation and hopefully to
give a reference for law makers to amend the regulation in the future.
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