The legal issues involved in organ donation and transplantation

Abstract

This thesis analyses the complex interplay of legal and ethical issues presented by the practice of organ donation and transplantation. It commences with a brief history of the evolution of transplantation technology and subsequently embarks on a thorough study of the various models of transplant legislation formulated worldwide, focussing mainly on the situation in Europe and the United States of America. Particular emphasis is placed on the Additional Protocol to the Convention for the Protection of Human Rights and Dignity with Regard to the Application of Biology and Medicine, on Transplantation of Organs and Tissues of Human Origin. The first international text of its kind, the Convention upholds the "interests and welfare ofthe human being' over "the sole interest of society and science". Malta is one of the very few countries which still have no legislative set-up regulating this field of biomedicine. Indeed, Malta has no framework regulating any aspect of medical practice. Yet, organ transplants are regularly performed in local hospitals, utilising both cadaver as well as live donors. In an era when patients' rights have shifted to the foreground of medical law, it is alarming that Maltese physicians, organ donors and recipients continue to tread on such precarious grounds, in an absolute legal vacuum where none of them has any defined rights. This work proceeds to outline the current practice in the field of transplantation in Malta as compared to other jurisdictions. A model legislative framework is proposed which, it is hoped, will serve as an incentive to embark on a thorough codification of medical law in the Maltese Islands.