Судебное дело "Алина Саблина против тайной трансплантации органов"
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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