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Ruling over the Constitutional Court of the Russian Federation 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"

 

04.12.2003

 

   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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