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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 - 4 -
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