Civil and Penal Aspects of the Law in the Federal Republic of GermanyGoverning the Donation, Removal and Transfer of Organs (TransplantationLaw - TPG) with Regard to Administrative and Clinical Autopsy

Overview

In the Federal Republic of Germany, transplantation medicine, which is relatively young and stilldeveloping, is now regulated by the law governing the donation, removal and transfer of organs(Transplantation Law - TPG) of 05. 11. 1997 and has been given a legal basis which satisfies evenpresent-day standards. By evaluating the highly personal rights of potential organ donor and ofhis next-of-kin against the interests of maintaining life and health of others, the law works alongthe lines of the so-called extended consent solution. The basic civil law stipulations of §§ 3 + 4TPG, while protecting the donor’s individual freedom of decision, give his next-of-kin or trustedconfidant at or immediately following death the right to commurucate his presumes wishes. Inaddition, it must be stated that through recent decisions handed down by the Federal Constitutio-nal Court (Bundesverfassungsgericht) in response to various complaints, this regulation has beenrecognised as conforming to constitutional laws. The basic content of the penal regulations statesthat violations of civil law rules and trafficking in organs are an offence. Current disclosedrequirements for suitable donor organs, in particular for 1998, make it appear likely that thecurrent deficit can be eliminated by the introduction of the organisational measures contained inthe law. In conclusion, the situation with regard to autopsy should be addressed since, in contrastto the federal transplantation law which applies to all states, autopsy is regulated differently and,from a legal-political standpoint, unsatisfactorily by each individual state. It is desirable that thislegal ambiguity be corrected by standardising the inconsistent and at times non-existent legalstipulations.

Key words:
transplantation law - extended consent solution - obligation-to-supply organs - organ