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Judgment of the Supreme Court of the RF on finding clauses 2, 3 and 5 of the "Instruction Regarding the Removal and Initial Conservation of Pituitary Glands from Human Bodies" to be in contravention of federal legislation, invalid and unenforceable (5 October 2007)

 

05.10.2007

 

   Judgment  of the Supreme Court of the RF on finding clauses 2, 3 and 5
   of  the "Instruction Regarding the Removal and Initial Conservation of
   Pituitary  Glands from Human Bodies" to be in contravention of federal
   legislation, invalid and unenforceable

   5 October 2007

   Consultations of our partners:
   GKPI 02 - 566

                               SUPREME COURT

                         OF THE RUSSIAN FEDERATION

                                  JUDGMENT

   Moscow

                   In the name of the Russian Federation

   The Supreme Court of the Russian Federation, represented by

   judge of the Supreme Court of the Russian Federation B.A. Gorokhov,

   in the presence of court secretary E.Y. Biryukova,

   with   the   participation   of   public  prosecutor  of  the  General
   Prosecutor's Office I.B. Lyubimova

   having  considered at an open session of the court on 17 June 2002 the
   civil  action  brought  by  Alexey Anatolyevich Starchenko seeking the
   invalidation  of  clauses 2, 3 and 5 of the "Instruction Regarding the
   Removal  and  Initial  Conservation  of  Pituitary  Glands  from Human
   Bodies",  approved  by  Order  of  the  Ministry of Health of the USSR
   No. 866  of 23 September 1977, and clauses 1.1 and 1.2 of Order of the
   Ministry  of  Health of the USSR No. 872 of 7 July 1987 "On Increasing
   the  Recovery  of Pituitary Glands from Cadavers for the Production of
   Hormonal Agents".

   Having  listened  to the explanations of applicant A.A. Starchenko and
   his  representative  M.Y. Furkalyuk, representative of the Ministry of
   Justice  of  the  RF  T.Y.  Chizhikova,  and  the  position  of public
   prosecutor   of   the  General  Prosecutor's  Office  of  the  Russian
   Federation  I.B.  Lyubimova  that  A.A.  Starchenko's  application  be
   granted, the Supreme Court of the Russian Federation

                                 HAS FOUND:

   A.A.  Starchenko  filed  an  application with the Supreme Court of the
   Russian Federation seeking that clauses 2, 3 and 5 of the "Instruction
   Regarding  the  Removal  and  Initial Conservation of Pituitary Glands
   from Human Bodies", approved by Order of the Ministry of Health of the
   USSR No. 866 of 23 September 1977, and clauses 1.1 and 1.2 of Order of
   the  Ministry  of  Health  of  the  USSR  No.  872  of 7 July 1987 "On
   Increasing  the  Recovery  of  Pituitary  Glands from Cadavers for the
   Production  of Hormonal Agents" be declared invalid, invoking the fact
   that  the  aforementioned  provisions  of  the  subordinate legal acts
   infringe civil rights and are contrary to the rules established by the
   federal legislation.

   At  the  session  of the court the applicant A.A. Starchenko supported
   his claim.

   The  representative of the Ministry of Health of the RF did not appear
   in court, had been duly notified of the time and place of the hearing,
   and  did  not  submit any pleadings in opposition to A.A. Starchenko's
   application.

   The representative of the Ministry of Justice of the RF holds that the
   application filed by A.A. Starchenko is well founded and requests that
   it be granted by the court.

   Having reviewed the materials in the case file, and having listened to
   the  explanations  of  the  interested parties and the position of the
   public   prosecutor  that  A.A.  Starchenko's  application  should  be
   granted,  the  Supreme  Court of the Russian Federation finds that the
   claim  brought  by  A.A.  Starchenko  is  well  founded  and should be
   granted.

   Article  21  of the Constitution of the Russian Federation provides as
   follows:

   1. Human dignity shall be protected by the State. Nothing may serve as
   a basis for its derogation.

   2. No  one  shall  be  subject to torture, violence or other severe or
   humiliating treatment or punishment. No one may be subject to medical,
   scientific and other experiments without voluntary consent.

   These  constitutional  rules  govern  personal non-property relations,
   which  do  not terminate in connection with an individual's death. The
   concept  of  human dignity includes respectful treatment not only of a
   deceased individual, but of his remains.

   Article  5  of  Federal Law No. 8-FZ of 12 January 1996 "On Burial and
   the Funeral Business", provides, inter alia:

   1. A  person's expression of will regarding the dignified treatment of
   his  body after death is a wish, expressed verbally in the presence of
   witnesses or in writing:

   to consent to or oppose being subjected to an autopsy;

   to  consent to or oppose the removal of organs and/or tissues from his
   body.

   2. Actions relating to dignified treatment of a deceased person's body
   shall  be  performed in full compliance with the expression of will of
   the  deceased,  provided  that no circumstances have arisen preventing
   the deceased's wishes from being fulfilled and that the legislation of
   the Russian Federation does not stipulate otherwise.

   3. In the absence of any expression of will on the part of a deceased,
   the  right to permit the actions described in clause 1 of this Article
   shall  rest  with  the  spouse,  close  relatives  (children, parents,
   adopted  children,  adoptive  parents,  blood  brothers  and  sisters,
   grandchildren, grandfather, grandmother), other relatives or the legal
   representative  of  the  deceased,  and, in their absence, the persons
   assuming the duty to bury the deceased.

   Clauses  2 and 3 of the "Instruction Regarding the Removal and Initial
   Conservation of Pituitary Glands from Human Bodies", approved by Order
   of  the  Ministry  of Health of the USSR No. 866 of 23 September 1977,
   provide as follows:

   Clause 2. The removal of material shall be carried out after a cadaver
   has  been  delivered  to  the  morgue,  under  the  supervision of the
   pathologist  or  doctor  performing  the autopsy, no later than 3 days
   after  death,  with the exception of cadavers that have clear signs of
   decomposition.

   Clause  3.  Pituitary glands may be taken from cadavers of any age and
   sex.  Exceptions  are  cadavers  of  persons  who were ill and died of
   highly  dangerous  [infections]  and wound infections, pituitary gland
   pathologies,  and  in  cases  where  the  pituitary  gland is directly
   involved in the pathogenesis and lethal outcome.

   The  aforementioned  clauses  of  the  Instruction  challenged  by the
   applicant  establish the peremptory rule that the pituitary gland must
   be  removed  from  all  cadavers of all age groups, subject to certain
   exceptions,  without indicating that removal of the pituitary gland is
   to  be  done  either  on  the  basis  of  an expression of will of the
   deceased  himself  or with the consent the persons listed in Art. 5(3)
   of  the  Federal  Law  "On  Burial  and  the  Funeral Business", which
   infringes  the  human right to dignified treatment after death and the
   rights  of the relatives to consent to or oppose the removal of organs
   and/or tissues from the deceased's body.

   Therefore, clauses 2 and 3 of the Instruction contravene Art. 5 of the
   Federal  Law  "On Burial and the Funeral Business", because they allow
   the  removal  of  organs  from  a  person's body in the absence of the
   relevant  expression  of will of the deceased or of the persons listed
   in Art. 5(3) of said Federal Law.

   Clause  5  of  the  "Instruction  Regarding  the  Removal  and Initial
   Conservation  of Pituitary Glands from Human Bodies" provides that the
   experimental  laboratory  [of  endocrine preparation] is to effectuate
   the  collection  of  processed  material in the country as well as its
   transportation and payment for it.

   This  provision,  envisaging  payment for the removal of human organs,
   contravenes  Article  15  of  the Law of the RF "On Transplantation of
   Human Organs and/or Tissues", which prohibits the sale of human organs
   and/or  tissues. A healthcare institution that is permitted to perform
   operations  on  harvesting  and  processing organs and/or tissues from
   cadavers is prohibited from selling them.

   Article  47  of  the  Fundamental Principles of the Legislation of the
   Russian  Federation  on  Protection  of the Health of Individuals also
   establishes  the  rule  that  human  organs  and/or  tissues cannot be
   bought, sold or made the subject of any commercial transaction.

   Order  of the Minster of Health of the USSR No. 872 dated 07 July 1987
   "On  Increasing the Recovery of Pituitary Glands from Cadavers for the
   Production of Hormonal Agents" provides, inter alia:

   Clause  1.1.  Procure  the  removal,  for  purposes  of  recovery,  of
   pituitary glands from the deceased at healthcare institutions and from
   cadavers delivered for forensic medical examination in accordance with
   the  Instruction  Regarding  the  Removal  and Initial Conservation of
   Pituitary  Glands from Human Bodies, approved by Order of the Ministry
   of  Health  of  the USSR No. 866 of 23 September 1977, in the quantity
   specified in the annex.

   Clause  1.2.  Determine  those medical institutions that have anatomic
   pathology  departments  and  forensic  medical examination bureaus and
   order  them to carry out the removal of pituitary glands from cadavers
   during  autopsies  and  to  store  and  transfer  them  to  the Kaunas
   Experimental  Laboratory  of  Endocrine Preparation; procure that said
   institutions  are  provided with the Instruction Regarding the Removal
   and Initial Conservation of Pituitary Glands from Human Bodies.

   These  provisions also contravene Art. 5 of the Federal Law "On Burial
   and the Funeral Business", because they establish a duty to effectuate
   the  removal  of  pituitary  glands  from cadavers in the course of an
   autopsy,  i.e.  from  every  body  that  is  subject  to  an  autopsy,
   irrespective  of the expression of will of the deceased or whether his
   relatives have expressed their consent.

   The  aforementioned  Order  establishes the rule for the collection of
   pituitary  glands,  which confirms the infringement of the human right
   to  dignified  treatment  after  death  and the rights of relatives to
   consent  to  or oppose the removal of organs from the deceased's body,
   because  it  is not possible to plan beforehand the number of consents
   to the removal of organs after death.

   In  view  of  the above, guided by Arts. 191-197, 231-232 and 239-7 of
   the  Civil  Procedure  Code  of  the  RSFSR,  the Supreme Court of the
   Russian Federation,

                                   RULES:

   the application of Alexey Anatolyevich Starchenko is granted.

   Clauses  2,  3  and  5  of  the "Instruction Regarding the Removal and
   Initial  Conservation of Pituitary Glands from Human Bodies", approved
   by Order of the Ministry of Health of the USSR No. 866 of 23 September
   1977,  and  clauses  1.1 and 1.2 of Order of the Ministry of Health of
   the  USSR  No.  872  of  7  July  1987  "On Increasing the Recovery of
   Pituitary Glands from Cadavers for the Production of Hormonal Agents",
   are  found  to be in contravention of federal legislation, invalid and
   unenforceable.

   This  judgment  of  the  court is subject to appeal and protest in the
   Court  of  Cassation  of  the  Supreme Court of the Russian Federation
   within a period of 10 days.


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