Comparative Studies of Organ Transplant Between Taiwan And Japan-- Focused on the Transplant Self-deciding Rights
Date Issued
2011
Date
2011
Author(s)
Lai, Yi-Chun
Abstract
Organ transplant means that an organ removed from other people is implanted into a patient’s body to act as the original organ when the patient’s original one is hurt or injured and can not fully function. Due to its essence of altruism as well as its involvement in the dispute on brain death, organ transplant has become a profound issue in terms of philosophy of life and death, ethnics, jurisprudence and medical science etc.
It emphasizes more necessity than other medical transplant decisions just because of its particularity. With the upsurge of patients’ right movement, patients’ self-determination in the medical field is officially challenging to paternalism. Based on the practice of respecting principle of autonomy in bioethics, human-centered medical practice becomes the core purpose.
Medical technology on organ transplant developed very early in Taiwan. Since the legislation of Organ Transplantation Act of Taiwan in 1987, organ transplant was gradually accepted after it had been revised several times due to social events and donation requirement had been gradually relaxed. Japan formulated Organ Transplantation Act of Japan in 1997; the medical technology was advanced but the number of transplantation was few since the restriction of the most severe donation commitment requirement was adopted. Highly dependent on oversea sail transplant, Japan was violently criticized by international organizations; faced with the stress at home and abroad, it revised the law substantially for the first time.
The revised law in relaxing organ donation commitment requirement is similar to that of Taiwan, but the legal systems in both countries have strong and weak points. Japan’s detailed division of commitments on donation and brain death decision are worthy of our attention.
As for the positioning of living donor transplants decision and dead body transplants decision in the Constitution of Taiwan and the Constitution of Japan, Japan established the status of patients’ self-determination constitution and patients’ self-determination right was also actually approved in accordance with the 13th article of the right to pursue happiness. In terms of the domestic constitution, living donor transplants decision involves the embodiment of bodily rights, right not to be injured and the autonomy of body; the implementation of dead body transplants is inseparably related to self-discipline on personality; and the value and constitutional status of those mentioned above should be confirmed pursuant to the 22nd article of the Constitution of Taiwan.
Organ Transplantation Act of Taiwan has imposed restrictions such as kinship, age for donation and others on the organ transplant decision. Since organ transplant involves the decisions of personal body and the core of life, it’s impossible to rationalize the paternalistic limitation on self-determination if there is no key public objective. On the other hand, national protection obligation system should be established to guarantee the organ transplant decision for the gray zone of legal norms. It’s hoped to ensure the unrealized individual decisions and to implement the fundamental principle of respect for autonomy in bioethics by means of the domestic legal system on organ transplant, which makes donors’ will surpass the boundary between life and death and spreads love to the world.
Subjects
Medical Paternalism
Bioethics
Transplant Decision
Organ Transplantation Act
Non-Enumerated Fundamental Rights of Constitution
Type
thesis
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