Right to Health and the Human Organ: Right as a Consequence?
Sažetak
In the field of health care, right to health care requires a progressive interpretation whenever a new medical technology promises the preservation of life and health. Progressive interpretation takes into account both the legal and the technological development and though gradually but it enhances and specifies the scope of the rights vis-à-vis the treatments that have become part of the mainstream. The field of transplantation makes it possible to study all classical and new elements of right to health. The European approach, which categorically bans the payment for organs but relies on an opting out system in the case of cadaver donation, created a new public domain in which right to health and right to health care have become essential in the field of transplantation. People on the waiting list for organs evidently have a right to health. But this right does not provide direct entitlement to any particular human organ but it includes access to adequate health care and information with respect to organ donation. Furthermore, fair allocation of available organs, equity, access to postoperative treatment for both the donor and for the recipient are involved in a general right to health. The problem, however, as we have seen, is that the most important element of their health care: the availability of a viable organ depends on the altruism of others. The legal system, and more specifically the constitutional framework, cannot grant access to human organs as part of the basic rights.
Reference
Blankart, Charles B. (2005) Donors without Rights: The Tragedy of Organ Transplantation, paper for the European Public Choice Society Meeting (Manuscript).
Boyes, Roger (1986) Brains for Dollars, The Times, October 10, 1986. Reprinted in George R. Urban, Social and Economic Rights in the Soviet Bloc. New Brunswick, NJ: Transaction Books, 157–158.
Callender, Clive O. (2008) Cultural Differences in Living Organ Donation: A Global Perspective. In Rainer W.G. Gruessner and Enrico Benedetti, eds., Living Donor Organ Transplantation. New York: McGraw Hill Medical, 6–15.
Cronin, David C. and Mark Siegler (2008) Ethical and Legal Issues: The American Perspective. In Rainer W.G. Gruessner and Enrico Benedetti, eds., Living Donor Organ Transplantation. New York: McGraw Hill Medical, 16–23.
den Exter, André Pieter (2002) Health Care Law-Making in Central and Eastern Europe. Antwerp: Intersentia.
den Exter, André Pieter and Herbert Hermans, eds. (1999) The Rights to Health Care in Several European Countries. The Hague: Kluwer Law International.
Goodwin, Michele (2009) Empires of the Flesh: Tissue and Organ Taboos, Alabama Law Review, vol. 6, no.5 (Spring 2009), 1219–1248.
Leary, Virginia A. (1995) Complaint Procedures and the Right to Health, in The Review, International Commission of Jurists. Economic, Social and Cultural Rights and the Role of Lawyers. Special Issue, no. 55 (December 1995), 105–122.
Molinari, P.A. (1998) The Right to Health: From the Solemnity of Declarations to the Challenges of Practice, International Digest of Health Legislation, vol. 49, no. 1, special issue: Health Legislation at the Dawn of the 21st Century. Geneva: World Health Organization.
Nys, Herman (2010) Legal Protection of the Deceased Organ Donor in Europe, in André P. den Exter, ed. Human Rights and Biomedicine. Antwerpen: Maklu, 221–235.
Osiatyński, Wiktor (2009) Human Rights and Their Limits. Cambridge: Cambridge University Press.
Pellegrino, Edmund D. (1999) The Commodification of Medical and Health Care: The Moral Consequences of a Paradigm Shift from a Professional to a Market Ethic, Journal of Medicine of Philosophy, vol. 24, no. 3 (June 1999), 243–266.
Pollis, Adamantia (1996) Cultural Relativism Revisited: Through a State Prism, Human Rights Quarterly 18 (1996): 316–344.
Price, David (2000) Legal and Ethical Aspects of Organ Donation. Cambridge: Cambridge University Press.
Roscam Abbing, Henriette D. C. (1979) International Organizations in Europe and the Right to Health Care. Deventer: Kluwer.
Rothman, David et al. (1997) The Bellagio Task Force Report on Transplantation, Bodily Integrity and the International Traffic in Organs, Transplantation Proceedings, vol. 29, no. 6 (September 1997): 2739–2745.
Scheper-Hughes, Nancy (2008) Illegal Organ Trade: Global Justice and the Traffic in Human Organs. In Rainer W.G. Gruessner and Enrico Benedetti, eds., Living Donor Organ Transplantation. New York: McGraw Hill Medical, 106–121.
Shakarishvili, George (2005) Decentralization in Healthcare: Analyses and Experiences in Central and Eastern Europe in the 1990s. Budapest: Open Society Institute.
Silver, Theodore (1988) The Case for a Post-Mortem Organ Draft and a Proposed Model Organ Draft Act, Boston University Law Review, vol. 68, no, 4 (July 1988), 681–728.
Thouvénin, Dominique (2002) Autour du don et de la gratuité, Revue générale de droit médical, Numéro special, droit santé (2002), 99–108.
Wolfe, Robert A., Valerie B. Ashby, Edgar L. Milford, Akinlolu O. Ojo, Robert E. Ettenger, Lawrence Y.C. Agodoa, Philip J. Held, Friedrich K. Port (1999) Comparison of Mortality in All Patients on Dialysis, Patients on Dialysis Awaiting Transplantation, and Recipients of a First Cadaveric Transplant, New England Journal of Medicine, vol. 341, no. 23 (December 2, 1999), 1725–1730.
Wong, Melissa (2010) Coverage for Kidneys: The Intersection of Insurance and Organ Transplantation, Connecticut Insurance Law Journal, vol. 16, no. 2 (Spring 2010), 535–571.