PRAVO TREĆIH LICA DA ODLUČUJU O UZIMANjU ORGANA SA TELA PREMINULOG U SVRHU TRANSPLANTACIJE

Abstract

One of the conditions for lawful harvesting of deceased organs for the purpose of transplantation is the existing of an explicit or presumed consent of the organ donor. Apart the fulfillment of this condition, majority of European countries foresee the right of third parties, people close to the deceased, to permit organ donation if the deceased had not given an explicit consent, or to reject this medical procedure if the deceased had not done it during his life time. The subject of this paper is to review European supranational and national legislations in order to determine which parties have the right to make decisions (along with or instead of the deceased) in relation to postmortal explantation of his/her organs, what is the scope of their authorities and and what are the boundaries for their execution. The author of this paper suggests that instead of using wider formulations, such as: the deceased relatives, the deceased family members, etc., it is necessary to define the scope of third parties and make a precise order in which they will be invited to make a decision, as well as what a medical team should do if there are several parties of the same rank. Also, the author concludes that postmortal organ donation should primarily be based on the deceased will which he expressed during his/her life time, suggesting that a decision of the deceased close relatives to override his/her will would constitute the violation of the person's right to self-determination and autonomy.