Organ and tissue transplantation definition: civil law aspect

Abstract

This paper deals with the problem of defining the concept of organ and tissue transplantation in civil relations context. The fragmental definition of ‘organ and tissue transplantation’ presumes significant problems of this term’s legal interpretation. The core difficulty of such situation seems to be the usage of special medical terminology in indicated legal relations sphere. Simultaneously, it is well known that literal borrowing of medical terminology leads to a significant narrowing of the concept, as it does not take into account many legal aspects. The situation is complicated by the fact that Ukrainian and foreign scientists have no unambiguous views on the doctrinal interpretation of this term. Some legal scholars argue that the transplantation of human anatomical materials should be considered from the standpoint of the right to medical care, others tend to define transplantation as a special type of medical service. One more group of scientists are supporters of borrowing medical terminology to denote this item and are likely to interpret transplantation as a special method of treatment or system of medical manipulations. This article calls us into question of analyzing doctrinal legal approaches to understanding the transplantation concept in the context of civil law, as well as the interpretation of this term in national and international transplantation legislation. Special legal methods and logical tools are applied to present the solution of the article’s purpose. The complex analysis of special transplant legislation and doctrinal approaches has led us to the conclusion that national and international legislative definitions of transplantation tend more to the established medical terminology. A systematic analysis of the doctrinal considerations and legal provisions allows us to identify the following approaches to understanding transplantation: transplantation as medical manipulation (medical intervention); transplantation as a process of organ or tissue replacement; transplantation as a method of treatment; transplantation as medical care; transplantation as medical service. Such a variety of views on the interpretation of this concept is quite justified primarily due to the multifaceted nature of the transplantation phenomenon. All the above approaches seem to be correct, because they reflect it from different angles. Despite the lack of agreement, we believe our findings compare well with the opinion that medical service seems to be the best reflection of the civil law nature of the legal relations for the provision of medical care. Therefore, we suggest to define the term “transplantation” as medical service for the provision of highly specialized medical care by replacement of an organ and (or) tissue that has lost its vital functions on the basis of medical indications.

Keywords

• transplantation
• definition
• medical service
• medical care
• civil relations