A Jurisprudential Study on the Transplantation of Human Organs－Centered upon the Comparison Between the Chinese and the Western Legal Cultures

• Main Authors: WEN-LIANG CHAN, 詹文良
• Other Authors: 楊奕華
• Format: Others
• Language: zh-TW
• Published: 2012
• Online Access: http://ndltd.ncl.edu.tw/handle/95892942221578557207

碩士 === 東吳大學 === 法律學系 === 100 === Abstract The main target of Human Organ Transplantation Act to save one’s life , the first article provided,「In order to recover the function of human organ or save one’s life, to let the physician make a surgical operation for taking the human organ from cadaver or other people’s organ, the present Regulation is made.」The Act focus on saving one’s life conveniently, the content starting good will, but western utilitarianism thinking inside, maybe have not enough to take care the donors, indeed we can think, in Taiwan our culture is Confucianism ,if the Act neglect the problem of the difference on the western and Chinese legal culture. Organ transplant saving many people’s life in the biotechnology is more and more important. However the donation rate is low, someone will ask where is the problem. Whether organ transplant involved many problems easy to get in confused, if we think in one point of view. We not only draw out the law with the passive limited function, but also should have the positive function to save one’s live. At first we should have right understanding to human organs and donation, then can increase the donation rate to develop the saving effect. Brain death to be the key point decide to take the organs from cadaver, Human Organ Transplantation Act in the process of legislation about the brain death decision, is not clear on the brain death concepts, to arguing on not main issue, the brain death decision procedures to impact the thousands of year to comprehend the death, but talk over less, then cause the public doubt what the death concept should be. Death is the culture topic of human race from thousands of year, Zilou ask the death problem in The Analects of Confucius, the Confucius answered, ”not know the live how can know the death”. Deceased philosopher Martin Heidegger in Germany say “human is being-towards-death, going an existential analysis in his books,《Being and Time》. Thereby life and death is always the main topic that we care about in the worldwide. We live in the world to enjoy the “life”, ”death ”is still a ordinary, absolutely reality problem someday we should face. Death cannot experience in advance, Maybe we can discuss the death in philosophy, religion, law, medical science, biology, sociology and so on. Even today medical science in the high development, we still have big controversial in the standard of the decision of brain death. Organ donation involves the life, should face it seriously, in the law side we discuss it in the legal culture will avoid from blind spot in one angle seeing. Organ transplant is a kind of medical behavior, it must get the organs from donation, except from the artificial organs or animals. Organ donation can help many people but human’s organ is not like machine component can produce easily. The only way is to take human organ from other’s body, it not only to make risk in medical and cause many human ethic problems. When we talk about the problem of the organ transplant, despite no country prohibit organ transplant, but establish many limited regulations, even have the religion group to oppose it. Science development is an unstoppable trend, how to balance the human nature and traditional culture, which can avoid the science as the no reins horse take out of control. Law is like the reins to avoid the law order un-control, how to establish the law, except for comparing the organ transplant system, we expect center on the Chinese and western legal culture, from the difference of the culture in compliance of our traditional custom and culture soil. Law’s establishment is according by people living happily, by the rationality and emotion, always with its purpose, sometimes law lead the social development, sometimes the social change following the law development. No matter what kind of situation, law and the social movement affect each other. Law can not deviate from our live, cause violating the human nature, and law can not surpass too much our today’s life, it can not get the identify will not accept by public. We set out from the jurisprudential side, especially comparison the legal culture, rethinking the organ transplant ethic issues, in the different legal culture, if the law should have the different criteria, expect to adapt the law to the local legal sail, and bring up the new ideas in the organ transplant.