The Study of Brain Death And Organ Transplant Between Taiwan And Mainland China－Discussion of Their Legal System

• Main Authors: Lou-Yin Hsya, 羅殷霞
• Other Authors: 曾淑瑜
• Format: Others
• Language: zh-TW
• Published: 2006
• Online Access: http://ndltd.ncl.edu.tw/handle/24559271677024866640

碩士 === 中國文化大學 === 法律學研究所 === 95 === Abstract Ever since the 1970s of the 20th century, following the fast paced development of life science and the continuous evolution of social impact on life, the legislations regarding life among countries around the world have gotten involved in more than scores of issues including health care, disease control, mental health, birth and population, environmental protection, euthanasia, brain death, organ transplant, artificial insemination and open brain surgery for drug addiction treatment. The trend keeps moving forward until the end of the 20th century when life forensic science comes up. Among the subjects for discussion within its scope, brain death and organ transplant are the most important and also the most controversial ones. Organ transplant is one of the most significant contributions of the 20th century medicine to the human race, and it is also an effective method to treat late organic pathological changes. As rapid development of medical science such as genetic therapy, stem cell medicine and new immune drugs expands, organ transplant has experienced the unprecedented progress that brings a thread of hope to desperate patients. The 21st century medicine shall be an era of organ transplant. Dr. Thomas Starzl, known as the Father of Liver Transplantation, ever predicted that surgery in the 21st century would be dominated by organ transplantation surgery. Harvesting organs from human bodies to proceed with organ transplant may be seen as normal procedures medically speaking, but for the life and health of the donor, it is deemed harmful; in terms of live donor transplant, the procedures may be involved in the offenses of assisted suicide and assisted self destruction in the criminal code, while body transplant may be involved in the offense of body damage in the criminal code. Whether organ transplant is absolutely in accordance with medical principles and is beneficial to the health and safety of the recipient are topics worthy of discussions. This paper aims to focus on the law system to discuss the similarities and differences of concepts on brain death, organ donation and organ transplant across the Strait and the applications of law in order to achieve the following purposes: 1) to promote a proper definition of brain death in the law system across the Strait that is able to follow the progress in medicine; 2) to clarify the nature of human organs before the law in order to understand the rights when people freely dispose their organs; 3) to discuss the main conditions of legitimacy on organ transplant to enable doctors to be released from mental burden of obligation conflict at the same time when they are saving lives; 4) to examine the current status across the Strait and to make suggestions. The main focus of this study is on the law system to discuss the issues of brain death and organ transplant across the Strait. The law system hereby refers to the Civil Law, Criminal Law, Human Organ Transplant Ordinance, The Guidelines for Determination of Brain Death, and Medical Law that are related to legal benefit of life science. The organs referred to include heart, lung, liver, kidney, pancreas, and also include bones, eye cornea, tissue, etc. This paper probes on the difference between brain death determination and traditional death, and in terms of the thought whether organs should be traded, this paper, on one hand, analyzes from the angle whether human beings have the rights to dispose own bodies, and on the other hand discusses the necessity of organ transplant from the viewpoint of the economics of law. Considering the examples of legislations from foreign countries that may help orientate and analyze this question, this paper is going to introduce the current status of brain death and organ transplant in Taiwan, China, Japan, the United States and Spain. This paper is divided into five chapters. Chapter 1 is the introduction to introduce the research motivation, objectives, research method and scope. Chapter 2 explains the concepts of brain death, organ donation and organ transplant. The proposed explanations of specific terms and conceptual definitions are based on the science of medicine and law. Chapter 3 states the positions of human body and human organs before the law to discuss the rights of human beings in disposing own bodies based on related laws. Chapter 4 describes the examples of legislations from different countries regarding the current practicing status of organ transplant regulations and covers some discussions. This paper discusses the issues of brain death and organ transplant across the Strait through the law system hoping to provide the following research results to be taken as academic references for the medical circle and the law circle of both sides: 1) To establish a mutually nurturing relationship between the science of law and medicine. 2) To introduce the concept of death through law and medical science, and through discussions on legal benefit of life to understand various dilemmas that organ transplantation surgery is facing and then to learn how to respect lives. 3) Through the economic analysis of law, to understand the economic costs borne for our countrymen who proceed with organ transplant in mainland China. 4) To promote that the legislations regarding brain death, organ donation and organ transplant across the Strait are in compliance with medical ethics and morality, fulfilling the principles of independent decision, non-commercial, equality and fairness. This study anticipates that the law of life science from both sides may head toward a fine and healthy international direction.