Study on the Constitutionality of the Human Organ Transplant-Centered on the Human Organ Transplant Ordinance in Taiwan

• Main Authors: Ping-chin Lin, 林秉嶔
• Other Authors: none
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/63032653021913301820

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.