Судебное дело "Алина Саблина против тайной трансплантации органов"
05.10.2007
Judgment of the Supreme Court of the RF on finding clauses 2, 3 and 5
of the "Instruction Regarding the Removal and Initial Conservation of
Pituitary Glands from Human Bodies" to be in contravention of federal
legislation, invalid and unenforceable
5 October 2007
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GKPI 02 - 566
SUPREME COURT
OF THE RUSSIAN FEDERATION
JUDGMENT
Moscow
In the name of the Russian Federation
The Supreme Court of the Russian Federation, represented by
judge of the Supreme Court of the Russian Federation B.A. Gorokhov,
in the presence of court secretary E.Y. Biryukova,
with the participation of public prosecutor of the General
Prosecutor's Office I.B. Lyubimova
having considered at an open session of the court on 17 June 2002 the
civil action brought by Alexey Anatolyevich Starchenko seeking the
invalidation of clauses 2, 3 and 5 of the "Instruction Regarding the
Removal and Initial Conservation of Pituitary Glands from Human
Bodies", approved by Order of the Ministry of Health of the USSR
No. 866 of 23 September 1977, and clauses 1.1 and 1.2 of Order of the
Ministry of Health of the USSR No. 872 of 7 July 1987 "On Increasing
the Recovery of Pituitary Glands from Cadavers for the Production of
Hormonal Agents".
Having listened to the explanations of applicant A.A. Starchenko and
his representative M.Y. Furkalyuk, representative of the Ministry of
Justice of the RF T.Y. Chizhikova, and the position of public
prosecutor of the General Prosecutor's Office of the Russian
Federation I.B. Lyubimova that A.A. Starchenko's application be
granted, the Supreme Court of the Russian Federation
HAS FOUND:
A.A. Starchenko filed an application with the Supreme Court of the
Russian Federation seeking that clauses 2, 3 and 5 of the "Instruction
Regarding the Removal and Initial Conservation of Pituitary Glands
from Human Bodies", approved by Order of the Ministry of Health of the
USSR No. 866 of 23 September 1977, and clauses 1.1 and 1.2 of Order of
the Ministry of Health of the USSR No. 872 of 7 July 1987 "On
Increasing the Recovery of Pituitary Glands from Cadavers for the
Production of Hormonal Agents" be declared invalid, invoking the fact
that the aforementioned provisions of the subordinate legal acts
infringe civil rights and are contrary to the rules established by the
federal legislation.
At the session of the court the applicant A.A. Starchenko supported
his claim.
The representative of the Ministry of Health of the RF did not appear
in court, had been duly notified of the time and place of the hearing,
and did not submit any pleadings in opposition to A.A. Starchenko's
application.
The representative of the Ministry of Justice of the RF holds that the
application filed by A.A. Starchenko is well founded and requests that
it be granted by the court.
Having reviewed the materials in the case file, and having listened to
the explanations of the interested parties and the position of the
public prosecutor that A.A. Starchenko's application should be
granted, the Supreme Court of the Russian Federation finds that the
claim brought by A.A. Starchenko is well founded and should be
granted.
Article 21 of the Constitution of the Russian Federation provides as
follows:
1. Human dignity shall be protected by the State. Nothing may serve as
a basis for its derogation.
2. No one shall be subject to torture, violence or other severe or
humiliating treatment or punishment. No one may be subject to medical,
scientific and other experiments without voluntary consent.
These constitutional rules govern personal non-property relations,
which do not terminate in connection with an individual's death. The
concept of human dignity includes respectful treatment not only of a
deceased individual, but of his remains.
Article 5 of Federal Law No. 8-FZ of 12 January 1996 "On Burial and
the Funeral Business", provides, inter alia:
1. A person's expression of will regarding the dignified treatment of
his body after death is a wish, expressed verbally in the presence of
witnesses or in writing:
to consent to or oppose being subjected to an autopsy;
to consent to or oppose the removal of organs and/or tissues from his
body.
2. Actions relating to dignified treatment of a deceased person's body
shall be performed in full compliance with the expression of will of
the deceased, provided that no circumstances have arisen preventing
the deceased's wishes from being fulfilled and that the legislation of
the Russian Federation does not stipulate otherwise.
3. In the absence of any expression of will on the part of a deceased,
the right to permit the actions described in clause 1 of this Article
shall rest with the spouse, close relatives (children, parents,
adopted children, adoptive parents, blood brothers and sisters,
grandchildren, grandfather, grandmother), other relatives or the legal
representative of the deceased, and, in their absence, the persons
assuming the duty to bury the deceased.
Clauses 2 and 3 of the "Instruction Regarding the Removal and Initial
Conservation of Pituitary Glands from Human Bodies", approved by Order
of the Ministry of Health of the USSR No. 866 of 23 September 1977,
provide as follows:
Clause 2. The removal of material shall be carried out after a cadaver
has been delivered to the morgue, under the supervision of the
pathologist or doctor performing the autopsy, no later than 3 days
after death, with the exception of cadavers that have clear signs of
decomposition.
Clause 3. Pituitary glands may be taken from cadavers of any age and
sex. Exceptions are cadavers of persons who were ill and died of
highly dangerous [infections] and wound infections, pituitary gland
pathologies, and in cases where the pituitary gland is directly
involved in the pathogenesis and lethal outcome.
The aforementioned clauses of the Instruction challenged by the
applicant establish the peremptory rule that the pituitary gland must
be removed from all cadavers of all age groups, subject to certain
exceptions, without indicating that removal of the pituitary gland is
to be done either on the basis of an expression of will of the
deceased himself or with the consent the persons listed in Art. 5(3)
of the Federal Law "On Burial and the Funeral Business", which
infringes the human right to dignified treatment after death and the
rights of the relatives to consent to or oppose the removal of organs
and/or tissues from the deceased's body.
Therefore, clauses 2 and 3 of the Instruction contravene Art. 5 of the
Federal Law "On Burial and the Funeral Business", because they allow
the removal of organs from a person's body in the absence of the
relevant expression of will of the deceased or of the persons listed
in Art. 5(3) of said Federal Law.
Clause 5 of the "Instruction Regarding the Removal and Initial
Conservation of Pituitary Glands from Human Bodies" provides that the
experimental laboratory [of endocrine preparation] is to effectuate
the collection of processed material in the country as well as its
transportation and payment for it.
This provision, envisaging payment for the removal of human organs,
contravenes Article 15 of the Law of the RF "On Transplantation of
Human Organs and/or Tissues", which prohibits the sale of human organs
and/or tissues. A healthcare institution that is permitted to perform
operations on harvesting and processing organs and/or tissues from
cadavers is prohibited from selling them.
Article 47 of the Fundamental Principles of the Legislation of the
Russian Federation on Protection of the Health of Individuals also
establishes the rule that human organs and/or tissues cannot be
bought, sold or made the subject of any commercial transaction.
Order of the Minster of Health of the USSR No. 872 dated 07 July 1987
"On Increasing the Recovery of Pituitary Glands from Cadavers for the
Production of Hormonal Agents" provides, inter alia:
Clause 1.1. Procure the removal, for purposes of recovery, of
pituitary glands from the deceased at healthcare institutions and from
cadavers delivered for forensic medical examination in accordance with
the Instruction Regarding the Removal and Initial Conservation of
Pituitary Glands from Human Bodies, approved by Order of the Ministry
of Health of the USSR No. 866 of 23 September 1977, in the quantity
specified in the annex.
Clause 1.2. Determine those medical institutions that have anatomic
pathology departments and forensic medical examination bureaus and
order them to carry out the removal of pituitary glands from cadavers
during autopsies and to store and transfer them to the Kaunas
Experimental Laboratory of Endocrine Preparation; procure that said
institutions are provided with the Instruction Regarding the Removal
and Initial Conservation of Pituitary Glands from Human Bodies.
These provisions also contravene Art. 5 of the Federal Law "On Burial
and the Funeral Business", because they establish a duty to effectuate
the removal of pituitary glands from cadavers in the course of an
autopsy, i.e. from every body that is subject to an autopsy,
irrespective of the expression of will of the deceased or whether his
relatives have expressed their consent.
The aforementioned Order establishes the rule for the collection of
pituitary glands, which confirms the infringement of the human right
to dignified treatment after death and the rights of relatives to
consent to or oppose the removal of organs from the deceased's body,
because it is not possible to plan beforehand the number of consents
to the removal of organs after death.
In view of the above, guided by Arts. 191-197, 231-232 and 239-7 of
the Civil Procedure Code of the RSFSR, the Supreme Court of the
Russian Federation,
RULES:
the application of Alexey Anatolyevich Starchenko is granted.
Clauses 2, 3 and 5 of the "Instruction Regarding the Removal and
Initial Conservation of Pituitary Glands from Human Bodies", approved
by Order of the Ministry of Health of the USSR No. 866 of 23 September
1977, and clauses 1.1 and 1.2 of Order of the Ministry of Health of
the USSR No. 872 of 7 July 1987 "On Increasing the Recovery of
Pituitary Glands from Cadavers for the Production of Hormonal Agents",
are found to be in contravention of federal legislation, invalid and
unenforceable.
This judgment of the court is subject to appeal and protest in the
Court of Cassation of the Supreme Court of the Russian Federation
within a period of 10 days.
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