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2.1.1. The conventions regulating questions of legitimacy of withdrawal of bodies and fabrics of a human body

On November, 19th, 1996 the Committee of Ministers of the Council of Europe had been accepted the Convention of the Council of Europe «About protection of the rights and advantages of the person in connection with application of achievements of biology and medicine: the Convention on human rights and biomedicine» [111].

The given legal act developed taking into account recommendations the CART, urged to protect advantage and individual integrity of the person and to guarantee observance of a personal immunity and other rights and fundamental freedoms in connection with application of achievements of biology and medicine [112].

Convention main objective - protection of advantage and individual integrity of the person, a guarantee to everyone observance of a personal immunity, its rights and fundamental freedoms in connection with application of achievements of biology and medicine.

In item 2 the priority of the separate person and its interests over interests of a society or a science is proclaimed.

The carried out researches have proved, that at transplantation of one of pair bodies, namely the kidneys, withdrawn from the live donor, the highest prizhivaemost [113]. We will notice, that conditions of withdrawal of bodies demand observance of all legal aspects.

As truly specifies A.N.Pishchita, to one of the basic serious problems at transplantation of bodies and fabrics of the person from live donors, is the problem of realisation of the rights of patients, both the recipient, and the donor, on the informed voluntary consent concerning medical intervention [114].

The chapter of II item 5 of the Convention specifies that the voluntary consent of the person in which relation medical intervention is carried out is necessary. The consent can be given in the most various forms. It can be direct or indirect. The direct consent can be oral or written. Article does not provide any concrete form. Here it is necessary to assume, that it will depend on character of intervention. The direct consent is unessential concerning many usual medical actions. In this connection the consent frequently happens indirect as the corresponding person is informed enough that should occur. However in some cases, for example in case of participation in scientific researches or in case of withdrawal of parts of a body with a view of transplantation the direct and concrete consent of the patient is necessary. And it should be informed on the purpose and character of intervention, also about possible consequences and risks. It is necessary to notice and that the person at any moment can withdraw the consent. Proceeding from it, it is possible to draw a conclusion, that the person should have possibility voluntary to give the consent to the intervention connected with its organism, or to refuse such intervention.

The consent to medical intervention is accompanied with withdrawal of bodies at the live donor. According to Convention item 19, withdrawal at the live donor of bodies and fabrics for their transplantation can be made exclusively for the purpose of treatment of the recipient and under condition of absence of suitable body or a fabric, received from a corpse. It means, that it is not necessary to use the bodies withdrawn from the live person if it is possible to receive such body from a corpse.

Because withdrawal of bodies or fabrics at live donors always represents for them risk, both for health, and for a life. The donor should express the voluntary consent in writing or in that which is provided by the legislation of the respective country.

So, some states have entered the additional positions, concerning criterion of the consent, in particular in Belgium and Turkey it is necessary presence of one or several witnesses, including their signatures, in Romania in the presence of two witnesses.

In Spain presence and the signature of the judge who are responsible for conducting of public archive in given area is required, besides it the written conclusion of Committee on ethics of corresponding hospital is required.

To Italy and Morocco presence of the representative of the court of justice is required.

In Poland it is necessary to receive the written approval, both the donor, and the recipient. And in Hungary in the presence of officials or the notary.

In Greece such consent of the donor which should be issued in the form of the statement certificated in the notarial form on which the police power vise the signature of the donor is provided.

In Finland on the consent of the donor the permission of Ministry of Health, in Slovakia - special Advisory committee should be received.

In Germany the written approval expressing accurate will (the narrow consent) donor on body withdrawal also is provided. In 1990 working group transplantatsionnyh the centres and German fund of transplantation of bodies have developed so-called information model. Something similar is used in the Scandinavian countries. The given model laid also at the heart of the several bills submitted the earths, for example Bremen and Giessen. The information model also in the absence of accurate will of the potential donor involves in the decision of relatives. But they should not make of the decision unlike model of the expanded consent [115]. After their informing on possibility of transplantation of bodies they during some time can express the consent or disagreement. If during a target date disagreement is not expressed, transplantation is possible. Those relatives who do not have desire to solve this question, whether it be from an overstrain or from indifference, have a possibility not to make of this decision [116].

In July, 2012 it became known that Ministers of Health of 16 federal earths of Germany have unanimously supported the new model regulating a donor service of bodies and fabrics. According to the new rules, each citizen of the Federal Republic of Germany will be without fail interrogated about that, to become ready it the donor or not. As it has already been noted, now in Germany other, voluntary scheme operates: any citizen, and also relatives of the patient who is in a condition of death of a brain, can declare under own initiative to the authorities readiness to become the donor. Thus obligatory universal interrogation in the country does not exist [117].

According to scientists, in particular, professors Taupittsa, the information model whenever possible considers opinion died if it has expressed during lifetime the consent or disagreement to possible transplantation. If accurate expression of will is not present, the decision is accepted by relatives who know will died is better, than other persons. But they also can and refuse it. The given model does not close access to medicine to bodies which can be used for rescue of human lives [118].

Now each German to whom it was already executed 16, the medical insurance companies will regularly inform on transplantation and to ask, whether the person after the death wishes to become the donor of bodies. Now only 20 % of citizens of Germany have the certificate of the donor. However, results of the sociological interrogation which has been carried out by the Cologne institute of research of public opinion YouGov, specify that overwhelming majority of citizens of Germany (77 %) agree new model. Against only 14 % and 9 more % for the present have expressed were not defined. Thus every second respondent (52 %) has declared readiness to become the donor after death. Now Germany in change of bodies require 12 thousand seriously ill patients, from them 8 thousand are waited for by a kidney [119].

According to item 6 of the Convention of the person, incapable to give the consent, carry out it only with the permission of the representative of authority or the person or establishment specified in the law. The opinion of the minor is considered as the factor which value grows depending on its age and maturity degree. Carrying out of medical intervention concerning full age, recognised incapacitated under the law or not capable to give the consent on a state of health, can be carried out only with the permission of its representative, authority or the person or establishment defined by the law.

However, thus it is necessary to consider a variety of legal systems in Europe: in some countries ability of the patient should agree to be checked in case of each separate intervention while in other countries this system is constructed on a special disability principle when the person can be declared incapable to agree to one or several kinds of profession of a physician. As the Convention does not pursue the aim to enter uniform system for all Europe, and urged to protect those who is not capable to give the consent, the reference in the text on the internal law is represented necessary: the internal law of each country should define in own way, are capable or persons are not capable to agree to intervention, considering thus necessity to deprive their ability on independent actions only when it is necessary in their interests.

Here it is necessary to consider a legal status of incapacitated donors. In Convention item 20 withdrawal of bodies or fabrics at the persons is said, that, not capable to agree to it it is forbidden. Here it is impossible to disagree with the legislator because the given category of persons, as a rule, incapacitated, i.e. owing to the certain reasons do not give the report to the actions and minors. They can be misled, intimidated, deceived for the further extraction of bodies or fabrics. An exception of this rule can become only in the most extreme cases and only concerning regenerative fabrics. It is a fabric, capable to restore all fabric weight and function after partial withdrawal, in particular a bone brain. It can change only to genetically compatible persons, as a rule, from brothers or sisters. The permission to withdrawal is given only provided that if not to make change, the life of the recipient will be under the threat. In this case as it is necessary to consider, that the risk for the donor should be minimum. It is necessary also that the recipient was the brother or sister. This restriction is directed on avoiding cases when a family and doctors go on extreme measures, trying to find at any cost even if the relationship is kept away, and chances of successful change it is few donor because of incompatibility of fabrics.

So, in internal legislation of Belgium, Germany, Spain, Italy, Canada, Latvia, Poland, Romania and Slovenia the minimum age of the donor which constitutes from 12 till 20 years is established. Parents, legal representatives (but the opinion of the minor is thus considered also), in some cases from approval by guardianship bodies can give the consent to body withdrawal.

In Slovenia and Finland in case of the donors who have not reached the minimum age, the consent of parents or the legal representative is required. According to the legislation of Finland the persons not reached the minimum age or limited in capacity, can be donors only vosstanovljajushchihsja fabrics. In Luxembourg and Slovenia the minors having possibility to express the consent, can be donors of bodies in that case when the recipient is their brother or sister.

In internal legislation some countries of the European Union special requirements concerning made transplantations are entered. So, Slovakia and Slovenia as with the permission of the commission on ethics in Estonia the recipient and the donor should consist in family or the family tie. In Italy transplantation of bodies between the persons who are not consisting in the family tie, in a case when at the patient of relatives is not present or when relatives do not approach for use as the donor is supposed.

In Slovakia and Slovenia, as with the permission of the commission on ethics.

In Estonia the recipient and the donor should consist in family or the family tie.

In Italy transplantation of bodies between the persons who are not consisting in the family tie, in a case when at the patient of relatives is not present or when relatives do not approach for use as the donor is supposed.

In Italy, Canada, Malta, Norway and Romania are established less rigid requirements and change of bodies of the live donors who are not relatives of the patient is resolved.

Poland and the Czech Republic with the consent of the select committee on ethics supposes a donor service of body of the donor who is not consisting in family ties with the patient.

In Germany the donor service of not restored bodies can take place only in case of relatives of the first or second degree, the spouses betrothed or other persons, being in especially close connections with each other; besides, after reception of the detailed information from two doctors the permission to a donor service is given by the commission of experts. At prior permission of Committee on change of donor bodies of live donors, in Malta the donor service of the persons who are not consisting in family relations, not consisting in family relations with recipients is authorised. In Poland the donor service vosstanovljajushchihsja fabrics of the donor who is not consisting in family relations with the recipient [120] is supposed.

According to Convention item 8, at occurrence of an extreme situation intervention for improvement of a state of health of the patient even is supposed in case is not received corresponding on that consent. In this case its earlier expressed opinion (Convention item 9) is taken into consideration.

Convention item 10 notices, that each person has the right to familiarise with the information on the health and clinical indications. Medical institution and the attending physician also should concern yours faithfully to that the patient does not wish to be informed in this respect. We assume, that in this case it is necessary to spend the emotionally-psychological help for possibility of the further intervention on purpose to keep and extend a life to the person.

The chapter of VII Convention forbids extraction of financial benefit and possible use of separate parts of a body of the person. The body of the person and its part should not be a source of reception of financial benefit. At reception of the appropriate consent, any body of the person withdrawn during medical intervention, can be stored and be used with a view of, distinct from for the sake of what it has been withdrawn. There are cases when the taken body under certain medical indications can not approach the recipient, cause its further tearing away after the made operation. For similar cases in the Convention registers, that transplantant can be applied to other, following change.

These positions have found the reflexion in the legislation of all European countries, in particular, §18 Laws on transplantation of Germany establish the criminal liability for trade in bodies, but having admitted, possibility of proportional compensation for the medical procedures connected with realisation of transplantation (§17). As according to §19 for withdrawal without the consent of the donor or with other infringement of an existing order of withdrawal of bodies and illegal distribution, processing or use of the personal information, in connection with the made operation, punishment under criminal law is provided.

The law of the Latvian Republic «About protection of a body of the died person and use of its bodies and fabrics in medicine» [121] forbids commercial activity in sphere of transplantations.

According to the Criminal code of Lithuania, according to article 135 of item 2 The one who has crippled the person or has done heavy harm to health from mercenary motives, on purpose to receive any body or a fabric of the sustained person for transplantation, is punished by imprisonment for the term from two till twelve years. In item 2 item 138, in case of a physical injury of small weight or causing of small harm to health on purpose to receive any body or a fabric of the sustained person for transplantation, it is punished by imprisonment for the term up to five years [122].

According to item 511-2 item — 511-2 Books the Heel of the Criminal code of France [123], reception from the person any of its bodies on the terms of payment in any form; granting of intermediary services for assistance to reception of any body on the terms of its payment, or vozmezdnaja transfer of another's human body; withdrawal of any body at the full age live person in the absence of its consent; reception from the person of fabrics, cages or products of its ability to live on the terms of payment in any form; withdrawal, a fabric or cages or gathering of products of ability to live of the full age live person if it has not expressed on it the consent; realisation of withdrawal or transplantation of bodies, or withdrawals or changes of fabrics, preservation or transformation of fabrics, or change of cages in any establishment which has not received the permissions to manufacture of similar operations; Distribution or transfer of bodies, fabrics, cages and products of ability to live of the person for the purpose of donation without observance of sanitary rules of safety; transformation, import, export, distribution, transfer or use of bodies, fabrics, cages or products of ability to live of the person is punished by imprisonments for seven years or an infliction of penalty from 100 000 euros [124].

For maintenance of conditions of transplantation of bodies and fabrics in interests of patients in Europe there is a requirement to protect the right and personal freedoms and to prevent trade in bodies of a human body, activity on their exchange and distribution. Considering, that abusings in the field of transplantation of bodies and fabrics can lead to the actions endangering a human life, health and advantage, the Additional report to the Convention under human rights and biomedicine concerning transplantation of bodies and fabrics of the person [125] on January, 24th, 2002 is accepted. It was promoted by progress in a medical science, in particular in the field of transplantation of bodies and fabrics. Being a recognised part of medical services, transplantation keeps lives of people which require the given operations. In view of shortage of bodies and fabrics the Additional report urges to take corresponding measures for increase in the donation of bodies and fabrics. Transplantation of bodies and fabrics should be spent according to the conditions protecting the rights and freedom of donors, potential donors and addressees of bodies and fabrics and corresponding institutes should promote maintenance of such conditions.

The report protects advantage and individual integrity of the person and guarantees observance of a personal immunity and other rights and fundamental freedoms in connection with transplantation of bodies and fabrics of the person. According to Report item 3, bodies and fabrics are meted only among patients from an official waiting list according to transparent, objective both to properly confirmed rules and medical indications. In the presence of international treaties about an exchange of procedure bodies should guarantee also the defensible, effective distribution among the participating countries taking into account a principle of solidarity within each country.

Item 5 obliges the doctor beforehand to inform the recipient on forthcoming change of body. Thus, the recipient as should know authentically, that there is no alternative treatment and what consequences can come owing to medical intervention. In case the given intervention can constitute risk for a life or to its health withdrawal is not supposed (item 11).

In a kind of numerous messages on unconscientiousness of doctors in relation to donors, item 7 orders full postoperative recovery of health, both the recipient, and the donor.

The additional Report supposes withdrawal of body at the live donor only for the medical purposes and if there is no suitable body or a fabric of the died. Also withdrawal of body at the live donor if the recipient consists with it in close family relations (item 10) is supposed. Besides the given information of the doctor, the donor has the right to address to the independent high quality experts, not accepting participations in procedure of withdrawal of bodies, for additional consultations (item 12).

Conditions are registered in the Additional Report for body or fabric withdrawal. The major condition is the consent of the live donor to body or fabric withdrawal. In this case, withdrawal can be made only after the donor will give on this informed and certain consent in writing or to official body. It, in turn, can withdraw the consent at any moment.

In a case if the potential donor cannot give the consent to withdrawal but if the addressee of body is necessary his brother or sister and this body is vital for it intervention is possible at the special permission of the donor, its legal representative or the person provided by the legislation. The consent should be issued in writing and assured competent body.

According to the Additional Report, withdrawal of bodies or fabrics died is forbidden, if it is not recognised by died according to the legislation. The doctor who has testified about death of the person, should not participate directly in this process and in the subsequent procedures of transplantation. For withdrawal of bodies and deceased person fabrics the consent also is necessary. If during lifetime the person objected to the given intervention in its body withdrawal of bodies or fabrics is forbidden.

It is necessary to notice, that withdrawal process to a body of the person should be respectful, all reasonable measures should be taken for preservation invariable appearance of a body of the deceased person.

In connection with sharp shortage of bodies and fabrics on the international space, item 19 of the Additional Report encourages donations of bodies or fabrics.

It is forbidden to use a body of the person and its bodies for extraction of financial benefit and their trade. Also all data of the personal character, concerning persons from which bodies or a fabric have been replaced and the addressee are considered as the confidential. Such data can be collected, processed and transferred only according to the rules, concerning to professional confidentiality and protection of data of personal character.

The given document provides judicial protection in case of drawing of an illegal damage as a result of transplantation, and gives the right to fair indemnification according to conditions and the procedures provided by the legislation.

The considered international legal certificates regulate legal withdrawal of bodies and fabrics of the person, in the conditions of a hospital in medical institution, according to the approved consultation of doctors and the established death of a brain. At carrying out of the given operation, in case of a posthumous donor service, the doctor proceeds only from interests of the recipient, with a view of rendering gratuitous transplantologicheskoj the help. The withdrawn bodies and fabrics should be meted in turn agree a waiting list. If the donor service lifetime infringement of the rights is inadmissible, both the donor, and the recipient is the right to the informed voluntary consent of all participants, including their legal representatives, the right to rendering of the qualified medical aid, treatment and rehabilitation, at withdrawal of body or a fabric the right to social benefit reception on time disability.

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A source: GALEYEV Gulchachak Ramilovna. INTERNATIONAL LEGAL COOPERATION In SPHERE of the PREVENTION And SUPPRESSION of ILLEGAL WITHDRAWAL, the TURN And TRANSPLANTATION of BODIES of the HUMAN BODY. The DISSERTATION on competition of a scientific degree of the master of laws. Kazan. -201

More on topic 2.1.1. The conventions regulating questions of legitimacy of withdrawal of bodies and fabrics of a human body:

  1. 2.1.3. International agreements in the field of counteraction of the states to illegal withdrawal and trade in bodies and fabrics of a human body
  2. 1.1. Formation of transplantology and a problem of illegal withdrawal and a turn of bodies of a human body
  3. 2.1. The international conventional regulation of transplantation for the purpose of bar of claim by lapse of time of illegal withdrawal and a turn of bodies of a human body
  4. GALEYEV Gulchachak Ramilovna. INTERNATIONAL LEGAL COOPERATION In SPHERE of the PREVENTION And SUPPRESSION of ILLEGAL WITHDRAWAL, the TURN And TRANSPLANTATION of BODIES of the HUMAN BODY. The DISSERTATION on competition of a scientific degree of the master of laws. Kazan, -2017 2017
  5. §2. Functions and powers of international bodies on protection of human rights (system of the United Nations Organization and the bodies created on the basis of multilateral conventions).
  6. §2. Illegal withdrawal and use of human bodies as the basic problem of international legal regulation in the field of transplantology
  7. 1.2. The factors influencing growth of an illegal transnational turn of bodies of a human body
  8. 2.2. Activity of the international organisations under the prevention of illegal circulation of bodies of a human body
  9. CHAPTER 2. The basic forms of co-operation of the states in the field of counteraction nezakonnomuoborotu bodies of a human body
  10. 2.3. A role of the international non-governmental organisations in sphere of prevention of an illegal turn of bodies of a human body
  11. CHAPTER 1. The General characteristic of occurrence and an aggravation of a problem of an illegal transnational turn of bodies of a human body
  12. §2 Right to the individual reference in interstate control bodies on protection of human rights: questions of the universal mechanism.
  13. Chapter 3. Realisation of international legal standards in the field of transplantology in the legislation of the Russian Federation and a problem of suppression of an illegal turn of bodies of a human body