Судебное дело "Алина Саблина против тайной трансплантации органов"
04.12.2003
3/18/14 Ruling of the Constitutional Court of the RF of 4 December
2003 No. 459-O / Russian Federation / Document SPS-31129/35139 o and
SPS Pravo.гu
[emblem of the Russian Federation]
Russian Federation
Ruling over the Constitutional Court of the RF of 4 December 2003 No.
459-O
On refusal to accept for consideration a request of the Saratov Region
Court on verification of the constitutionality of Article 8 of A lot
of the Russian Federation "On Transplantation of Human Organs and/or
Human"
Rendered
by the Constitutional Court of the Russian Federation
The Constitutional Court of the Russian Federation, composed of
Chairman V.D. Zorkin and judges M.V. Baglai, N.S. Bondar, G.A.
Gadzhiyev, Yu.M. Danilov, L.M. Zharkova, G.A. Zhilin, S.M. Kazantsev,
A.L. Kononov, L.O. Krasavchikova, V.O. Luchin, Yu.D. Rudkin, A.Ya.
Sliva, V.G. Strekozov, O.S. Khokhryakova B.S. Ebzeyev and V.G.
Yaroslavtsev,
having heard in a plenary session the findings of judge O.S.
Khokhryakova, having conducted a preliminary analysis of the request
of the Saratov Region Court pursuant to Article 41 of the Federal
Constitutional Law "On the Constitutional Court of the Russian
Federation",
has found as follows:
1. The Judicial Panel for Civil Cases of the Saratov Region Court
filed a request with the Constitutional Court of the Russian
Federation for verification of the constitutionality of Article 8 of
the Law of the Russian Federation dated 22 December 1992 "On
Transplantation of Human Organs and/or Tissues" tissues after death
for transplantation to a recipient [sic].
As it follows from the materials provided, under the judgment of the
Oktyabrsky District Court of the city of Saratov dated 17 September
2002 an action brought by the individual L.V. Zhitinskaya against the
Saratov Regional Hospital for compensation for pain-and-suffering
damages. The claimant's action was based on the fact that she had
learned from the forensic medical examiner's report on her deceased
son's body that hospital staff had removed both his kidneys for the
purpose of transplantation; she had not been informed of the doctors'
intentions, and their removal had taken place without her consent. In
the judgment of that court it is stated that Article 8 of the Law of
the Russian Federation "On Transplantation of Human Organs and/or
Tissues", which is applicable in this case, establishes a presumption
of consent on the part of an individual or his close relatives
(representatives) to the removal of his organs after death for the
purpose of transplantation.
The Judicial Panel on Civil Cases of the Saratov Region Court, with
which L.V. Zhitinskaya filed a cassational appeal, finding that
Article 8 of the Law of the Russian Federation "On Transplantation of
Human Organs and/or Tissues" is in contravention of the Constitution
of the Russian Federation, suspended the hearing of the case and
submitted a request to the Constitutional Court of the Russian
Federation to verify the constitutionality of said Article.
The appellant holds that said legal provision deprives an individual
or his close relatives (representatives) of the right to make an
expression of intent in the form of granting or withholding consent to
the removal of organs and/or tissues from his body after death,
because it does not establish any duty on the part of healthcare
institutions to ascertain the wishes of the deceased prior to death or
the wishes of his close relatives (representatives) regarding such
removal. Furthermore, since it does not designate any healthcare
institution that is to keep records of individuals who oppose the
removal of their organs and does not provide for the creation of a
corresponding database, individuals are deprived of the possibility of
registering their lack of consent beforehand. The disputed statutory
provision also does not stipulate the manner in which individuals are
to be notified of the death of a relative (represented person), nor
does it state with whom the duty is vested to provide such
notification; therefore, individuals do not have any opportunity to
express their lack of consent immediately prior to the removal of
their organs in cases when death cannot be foreseen. Since donor
organs are removed immediately once a person's death is recorded, it
is practically impossible for family members or legal representatives
of the deceased who live far away to make their views known to the
medical institution.
The appellant argues that, in view of the ambiguity and lack of
clarity of Article 8 of the Law of the Russian Federation "On
Transplantation of Human Organs and/or Tissues", the degree of
discretion left to healthcare institutions with respect to the removal
of a dead person's organs for transplantation is practically
unlimited, which contravenes the human right to dignified treatment of
his body after death and the principle of equality, and the appellant
seeks that said Article be found to contravene Articles 2, 15, 17, 18,
19, 21, 45 and 55 of the Constitution of the Russian Federation.
2. As it follows from the Constitution of the Russian Federation, man,
his rights and freedoms are of supreme value, and the recognition,
observance and protection of the rights and freedoms of man and
citizen are the obligation of the state (Article 2); everyone has the
right to life and the right to protection of health and medical
assistance (Article 20(1); Article 41(1)). Among the inalienable human
rights is the right to integrity of the person, enshrined in Article
22(1) of the Constitution of the Russian Federation, which precludes
any unlawful influence on a person, whether physical or psychological,
and the term "physical integrity " implies not only when a human being
is alive, but also establishes the necessary prerequisites for legal
protection of the body of a deceased person. Equally this relates to
the right to state protection of human dignity (Article 21(1) of the
Constitution of the Russian Federation), and to the human right to
dignified treatment of one's body after death, which derives from the
aforementioned constitutional rights.
In cases of medical intervention involving the transplantation of
organs and/or tissues from one person to another, where the legal
relationship between donor and recipient is complex and their
interests may conflict, it is the task of statutory regulation to
attain an appropriate balance of the key values and protected rights
enshrined in the constitution without infringing the rights of either
party, and taking into account the moral, social and other aspects of
this type of medical intervention.
As it follows from the Law of the Russian Federation "On
Transplantation of Human Organs and/or Tissues", the transplantation
of human organs and/or tissues is a way of saving lives and restoring
the health of individuals, and it may be carried out subject to
observance of the legislation of the Russian Federation and human
rights in accordance with the humane principles proclaimed by the
international community, and the interests of the person must prevail
over any societal or scientific interests (preamble). Proceeding from
this basis, Article 1 of the aforementioned Law provides that the
transplantation of organs and/or tissues from a live donor or a
deceased person can only be done if other medical approaches cannot
guarantee that the patient (recipient) will live or that his health
will be restored; the removal of organs and/or tissues from a live
donor is permitted only if his health, in the opinion of a board of
specialist medical practitioners, will not be significantly harmed,
and only provided that the live donor has given his consent; human
organs and/or tissues may not be purchased or sold; the purchase or
sale of such organs and/or tissues and advertising of same are
punishable with the criminal penalties established by the legislation
of the Russian Federation (in particular, Article 105(2)(m) of the
Criminal Code of the Russian Federation establishes liability for
murder for the purposes of harvesting the victim's organs or tissues;
Article 120 - for compelling the removal of human organs or tissues
for transplantation; and Article 152(2)(g) - for purchase or sale of a
minor or performance of other transactions in the form of transfer and
taking control of a minor for the purposes of removing his organs or
tissues for transplantation).
The possibility, subject to the observance of certain conditions, of
removing human organs and/or tissues for transplantation, and a
prohibition against compelling their removal are also set out in
Article 47 of the Fundamental Principles of the Legislation of the
Russian Federation on Protection of the Health of Individuals, dated
22 July 1993.
Setting out the conditions and procedures for transplantation, in
particular the removal of organs and/or tissues from a dead body in
order to transplant them to a recipient in need, the federal
legislators inserted a clearly worded prohibition in Article 8 of the
Law of the Russian Federation "On Transplantation of Human Organs
and/or Tissues" which bars such removal in cases where the healthcare
institution, as of the time of removal, has been made aware that while
alive the person or his close relatives or legal representative
expressed their opposition to it.
Thus the legislators in this case chose the model of presumed consent
to the removal of human organs and/or tissues after a person's death
("tacit consent" or "implied consent"), which interprets the absence
of a declaration of intent by the person or by his close relatives or
legal representatives, or the absence of the relevant documents
confirming a particular intent, as being an affirmative expression of
permission for such removal, subject to the condition that no one can
be subjected to such a procedure after death if it was known that the
person himself or his close relatives or legal representatives opposed
it.
The presumption of consent is based, on one hand, on the fact that it
recognized as inhumane to put the question of harvesting organs or
tissues to a person's relatives at practically the same time as they
are notified of his death, or immediately before an operation or other
type of medical treatment, and on the other hand - on the assumption,
deriving from the actual state of affairs in medicine in the country,
that given the current stage of development of transplantation it is
impossible to ascertain the intent of such persons after their death
within a period of time short enough to make a transplant viable.
An essential condition for introducing into the legal framework the
presumption of consent after death to the removal of a person's organs
(tissues) for the purposes of transplantation is also the enactment
and publication of a legislative act that has entered into force
containing the wording of such presumption, thereby allowing it to be
assumed that interested persons were aware of the applicable legal
rules.
In the Russian Federation that legal act is the Law of the Russian
Federation "On Transplantation of Human Organs and/or Tissues".
What is more, Russian legislation does not prevent an individual from
documenting in one form or another form (including notarized form) and
bringing to the attention of healthcare institutions his opposition or
consent to the removal of his organs and/or tissues after death for
the purposes of transplantation, and in that case failure to comply
with that expression of intent would incur legal liability.
So Article 8 of the Law of the Russian Federation "On Transplantation
of Human Organs and/or Tissues", challenged in the request of the
Saratov Region Court and which contains the wording on presumed
consent to the removal of human organs (tissues) for the purposes of
transplantation after a person's death, is not unclear or ambiguous
per se and therefore cannot be held to contravene individuals'
constitutional rights.
Moreover, with a view to observing a balance of the rights and
legitimate interests of donors and recipients, questions connected
with the exercise by an individual or his close relatives or legal
representatives of the right to set out in writing or verbally his
opposition to the removal of his organs and/or tissues for
transplantation requires more detailed regulation (both on a statutory
level as well as in the subordinate legislation), and the mechanisms
for informing the public of the current legal regulation require
further development and improvement. However, dealing with such issues
as additional legal regulation is the prerogative of the legislators -
as is changing the current legal regulation in this sphere, which is
sought by the appellant, who is of the view that it should be based on
the "solicited consent" model.
In view of the above, and guided by Article 43(1)(1) and Article
43(1)(2) and Article 79(1) of the Federal Constitutional Law "On the
Constitutional Court of the Russian Federation", the Constitutional
Court of the Russian Federation
has ruled:
1. To refuse to accept for consideration the request of the Saratov
Region Court, as it does not meet the requirements of the Federal
Constitutional Law "On the Constitutional Court of the Russian
Federation" based on which that type of request is to be accepted, and
because resolution of the issues raised by the appellant is not within
the competence of the Constitutional Court of the Russian Federation.
2. The ruling of the Constitutional Court of the Russian Federation on
this request is final and is not subject to appeal.
3. This Ruling shall be published in Bulletin of the Constitutional
Court of the Russian Federation.
Chairman
of the Constitutional Court of the Russian Federation V.D. ZORKIN
Judge-Secretary of the Constitutional Court of the Russian Federation
Yu.M. DANILOV
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