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3.1. Problems of legislative maintenance of transplantation and counteraction to an illegal turn of bodies of the person in the Russian Federation

Now one of actual problems for Russia is the lowest indicator of life expectancy – 129 place. The Russian Federation occupies 100 place in the universal list presented by the World organisation of public health services (CART) during the period for 2015 [195] expected life expectancies at a birth [196].

In comparison with 2010, the Federal service of the state statistics notices, that life expectancy of Russians for the first half of the year 2016 has constituted 72,06 years [197]. However the given fact is not consolatory whereas in all Russian regions serious deterioration of a state of health concerns almost all age levels of population and death rate indicators are high. It is necessary to notice, that along with such diseases as the cancer, a heart attack, a special place occupies also defeat of internal bodies of the person. One of ways of rescue of a life and recovery of health of citizens is transplantation of bodies and (or) fabrics of the person [198].

Formation of mediko-legal researches in the field of transplantology as independent scientific direction and formation doktrinalnyh researches of legal regulation of relations of this sphere in Russia are connected, first of all, with M.I.Avdeev, Z.L.Volozh, A.P.Gromova, M.I.Kovaleva, G.N.Krasnovskogo, N.S.Maleina, M.N.Maleninoj, N.A.Margatsky, A.V.Tikhomirov's names [199].

In Russia relations of a donor service had no due legal maintenance long time, and was regulated by departmental regulatory legal acts.

According to N.E.Krylovoj: «rates of development of biology and medicine considerably advance study of bioethical and legal questions of practical application of results of scientific researches in Russia» [200].

N.V.Apolinsky considers, that the jurisprudence follows the tastes of medicine with its false ideas, supposing possibility to consider the person as «carrier of transplants». However it is necessary to notice, that for today the right actually tries to catch up with the medical science which has left far forward, tries to give the legal form to those relations which for a long time already followed settle [201].

The beginning to legal regulation of transplantation of bodies and fabrics of the person in the country has put Decision SNK the USSR from September, 15th, 1937 № 1607 according to which to the people's commissar of public health services of the USSR has been accorded to publish a right obligatory for all establishments, the organisations and persons of the order about a procedure of medical and surgical operations, including on change of a cornea of eyes died, to blood transfusion and change of separate bodies and fabrics [202]. Subsequently it was accepted more than thirty subordinate legislation normative acts regulating withdrawal and change of bodies.

Academician B.V.Petrovsky marked: «the Decision (from September, 15th, 1937), constituted taking into account prompted by the theory and experiment of forecasts of development of a science about change of bodies and fabrics, contained positions, important for the further development of clinical transplantology and the caused rational decision of a problem of the donor» [203].

On February, 15th, 1954 № 88 «About wide introduction in practice of oculists of operation to change of corneas» on which basis, it is authorised to make withdrawal of eyes at corpses, including without the consent of relatives and the Instruction of Ministry of Health «About use of eyes of the died people the Order of the Minister of Health of the USSR has been developed for operation to cornea change blind».

The given standard documents as provided, with a view of improvement of doctors, in all necessary cases to make operations on change of corneas, to organise reception necessary cadaveric corneas of eyes to ophthalmologic establishments, institutes of eye illnesses and eye clinics.

Considering prompt development of transplantology and high achievements in researches and scientifically-practical workings out on preservation transplantantov, there was necessary its legislative regulation and the Order of the Minister of Health of the USSR № 228 from May, 6th, 1959 «About expansion of works on preservation and change of bodies and fabrics» has been accepted. The order provided to prepare special laboratories in twenty scientific research institutes of blood transfusion, traumatology and orthopedy.

The order of the Minister of Health of the USSR № 166 from April, 10th, 1966 «About measures of improvement of forensic pathology in the USSR» which resolved withdrawal of a cadaveric material to the medical institutions making work on preparation and preservation of some fabrics for the purpose of transplantations, became the following is standard-legal document in formation of legal base of transplantology. The fence of bodies and fabrics was supposed with the permission of the medicolegal expert who was carrying out opening, at its presence.

In 1972 the Order of the Minister of Health of the USSR № 482 «About improvement of maintenance of treatment-and-prophylactic establishments and clinics by cadaveric fabrics, a bone brain and blood» has been signed. On the basis of the Order, preparation transplantantov only at the corpses, died by sudden death from sharp cardiovascular insufficiency or another of other reasons which have entailed fast death was supposed. Withdrawal should be made at the first 12 o'clock after ascertaining by the doctor of death. An essential lack of the given document was that in it criteria of death have not been resulted, and this blank has been filled in 1977, the statement of the time Instruction for definition of biological death. It was considered to be the basic signs of death absence of warm activity, the termination of breath and disappearance of functions of the central nervous system.

Considering, that in many countries the criterion of "death of a brain» on which basis of the person it was possible to recognise dead has been entered and to consider as the donor of bodies and fabrics, on February, 17th, 1987 the legislator has approved the Order of the Minister of Health of the USSR «About the further development of clinical transplantology in the country». This standard document has installed «the Instruction on ascertaining of death as a result of the full irreversible termination of functions of a brain». As a matter of fact, for death ascertaining supervision and an establishment of the irreversible terminations of functions of a brain [204] was.

Separation of numerous departmental orders and the instructions, regulating transplantology, have led to that became necessary to develop the special legislation for maintenance of high-grade legal base of the given sphere of medicine [205].

For today sources of legal regulation of transplantation of bodies and fabrics of the person in the Russian Federation are the Federal act from November, 21st 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation» [206], the Law of the Russian Federation from December, 22nd, 1992 «About transplantation of bodies and (or) fabrics of the person» [207], departmental positions and instructions.

Being based on recommendations the CART, considering norms and the general principles of humanity, principles of protection of the rights and the advantages of the person proclaimed the international community, the legislation in medicine sphere has been brought into accord.

The list of bodies of the person – objects of transplantation, the establishments of public health services which are carrying out transplantation of bodies and (or) fabrics of the person, the establishments of public health services which are carrying out a fence and preparation of bodies and (or) fabrics of the person is approved by the Law of the Russian Federation «About transplantation of bodies and (or) fabrics of the person» from December, 22nd, 1992, and also the Order of Ministry of Health of the Russian Federation and the Russian academy of medical sciences from June, 4th, 2015 № 306н/3 «About the statement of objects of transplantation» [208]. Into the approved List enter: amnioticheskaja a cover; belochnaja a cover; vaskuljarizirovannyj the complex of soft fabrics including dermalnyj a layer, hypodermic fatty kletchatku and muscles; the top finiteness and its fragments; temporal fastsija; an eyeball (a cornea, sklera, a crystalline lens, a retina, konjunktiva); intestines and its fragments; a complex heart-lung; bones of the arch of a skull; a bone brain; a lung; the bottom finiteness and its fragments; the bottom jaw; a liver; Kidney; a pancreas with a duodenal gut; a spleen; heart; endokrinnye glands (a hypophysis, adrenal glands, a thyroid gland, a parathyroid gland, salivary gland, jaichko); hypodermic fatty kletchatka podoshvennoj foot areas; a serous capsule of a liver; vessels (sites of a vascular channel); a trachea; a fibrous capsule of a kidney.

The order considerably expands the List of objects of transplantation, the establishments of public health services which are carrying out transplantation of bodies and (or) fabrics of the person, and the List of establishments of the public health services which are carrying out a fence and preparation of bodies and (or) fabrics of the person.

Change of bodies and (or) fabrics can be applied, only in the event that other medical means cannot guarantee preservation of a life and recovery of health of sick (recipient). For carrying out of the given operation it is necessary to have medical evidence about necessity of transplantation of bodies and (or) fabrics of the person [209]. According to item 5 of the Order of Ministry of Health and social development of Russia № 258 from May, 25th, 2007 « About medical evidence about necessity of transplantation of bodies and (or) fabrics of the person », the conclusion stands out a consultation of doctors state and the municipal authorities of public health services entering into the List of establishments of public health services, bodies carrying out transplantation and (or) fabrics of the person. In structure of a consultation of doctors of the centre of transplantation affirms the head physician. The attending physician, the surgeon, the anaesthesiologist enter into it, and if necessary - doctors of other specialities. By results of carrying out of internal consultation and to additional laboratory researches of the patient, the consultation of doctors defines the decision on delivery to the patient of the conclusion. The drawn conclusion stands out to the patient personally, and to the persons who have not reached 15 years, and the citizens recognised in established legal order incapacitated, - to their legal representatives. On its basis of the patient has possibility to direct all medical documents in the centre of transplantation for the decision of a question on inclusion in "waiting list" and hospitalisation for operative treatment – transplantations of bodies and (or) fabrics of the person.

By the law it is provided two kinds of transplantation: from the live donor and from the cadaveric.

Transplantation of bodies and (or) fabrics from the live donor is carried out from its written approval. Thus he should be warned about possible complications for its health. If the donor has not reached majority or is recognised when due hereunder by incapacitated the consent to a fence of bodies and either) fabrics is given by his parents or legal representatives. Change of bodies and (or) fabrics to the recipient without the consent of the donor or without the consent of his parents or the legal representative probably in unusual cases when to hesitate realisation of corresponding operation is impossible also it is necessary to keep a life to the recipient.

Let's notice, that modern medical practice, in most cases, makes withdrawal of bodies and (or) fabrics at a corpse, rather than at the live donor [210], item 1 of item 11 of the Law provides and, as though «puts above», withdrawal for transplantation cadaveric bodies and fabrics. Probably given approach true therefore as it is unique possibility to receive unpaired body as injury possibility for a life and health of the donor [211] is excluded.

It is necessary to observe legal and medical conditions at withdrawal and change of bodies and (or) fabrics from a corpse: the death of the donor should be established in a corresponding order, the permission of the head physician of establishment of public health services to withdrawal of body and (or) fabrics at a corpse, will of the donor at a life or its relatives.

For today many disputes cause concept of biological death [212] which grants the right to withdrawal of bodies.

In the law on transplantation there is no more exhaustively an accurate information of concept "death". In one case it is a question of «biological death», in other – about «death of a brain» [213].

The death of the person is established according to the Federal act from November, 21st 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation», Law chapter 8 considers the medical actions which are carried out in connection with death of the person and the Governmental order of the Russian Federation from September, 20th, 2012 № 950 «About the statement of Rules of definition of the moment of death of the person, including criteria of procedure of an establishment of death of the person, termination Rules reanimatsionnyh actions and the form of the report of an establishment of death of the person» [214].

In item 1 of item 66 of the Law it is said, that the moment of death of the person is the moment of death of its brain or its biological death (irreversible  destruction of the person). Point 2 of considered article specifies that the death of a brain comes at the full and irreversible termination of all its functions registered at working heart and artificial ventilation of lungs.

It is necessary to notice, that in Russia for the first time there were «Rules of definition of the moment of death of the person» and «termination Rules reanimatsionnyh actions». The given documents have been created and accepted within the limits of realisation of the Federal act from November, 21st 2011 № 323-FZ «About bases of health protection of citizens in the Russian Federation» [215].

As the department press-service informs: «the Given certificate at federal level establishes for the first time criteria and procedure of definition of the moment of death of the person. Earlier this sphere was regulated by the departmental order». The order of Ministry of Health from March, 4th, 2003 № 73 «About the statement of the instruction on definition of criteria of an order of definition of the moment of death of the person, the termination reanimatsionnyh actions» contained concept about biological death. In a case when the death was established on the basis of  destruction of a brain of the person at work of other bodies, doctors were guided by the Order of Ministry of Health of the Russian Federation from December, 20th, 2001 № 460 «About the statement of death of the person on the basis of the diagnosis of death of the person».

According to the Order, the moment of death of the person the same as and earlier the moment of death of a brain or its biological death affirmed, considered.

I.V.Silujanova establishes, that concept formation «death of a brain» occurs under influences of the purposes and problems of transplantology [216].

P.D.Tishchenko notices, that introduction of new criterion is caused, as necessity to make possible the termination of senseless treatment of patients with «death of a brain», and occurrence of the medical, legal and moral bases of a fence of bodies used at transplantology [217]. It is impossible to disagree With the given opinion, after all the moment of an establishment of the diagnosis of death of a brain and withdrawal of bodies of the person causes the big disputes as the given sphere of relations is interfaced by a medical, legal and bioethical science.

As Gurvich specifies known reanimatolog A.M, accepting criteria of death of the person, death of a brain, the society has faced three definitions of death of a brain:

According to the first definition the death of a brain is a  destruction of all brain, including its trunk, with an irreversible unconsciousness, the termination of independent breath and disappearance of all stvolovyh reflexes;

The second definition: «death of a brain» is a  destruction of a trunk of a brain (signs of viability of a brain, in particular their electric activity thus can remain);

And the third definition: «death of a brain» is a  destruction of departments of the brain responsible for consciousness, thinking, i.e. For safety of the person as persons [218].

Even in two hours after death of the person separate cages of its heart continue to be reduced, publish an impulse which will be reflected in the electrocardiogram. It and is called – a rhythm of dying heart. The person who does not have medical preparation, can assume, that the patient is still live. But it is process irreversible. The death of a brain comes at the full and irreversible termination of all functions of the brain, registered at working heart and artificial ventilation of lungs. The solving fact for ascertaining of death of a brain is the combination of the termination of functions of all brain, to the proof of its irreversibility. The diagnosis of death of a brain is established by the commission of doctors of treatment-and-prophylactic establishment where there is a patient, in structure: the reanimatologa-anaesthesiologist, the neurologist with experience and the experience of work not less than 5 years. For carrying out of special researches the commission structure joins experts in additional methods of researches with an operational experience on a speciality not less than 5 years, including invited of other establishments on an advisory basis. Appointment of structure of the commission and the statement of the Report of an establishment of death of a brain is made managing reanimatsionnym branch where there is a patient, and during its absence - the responsible doctor on duty of establishment. According to item 3 of Rules of definition of the moment of death of the person, reanimatsionnye actions stop on the basis of the diagnosis of death of a brain, the commission cannot join the experts who are taking part in a fence and transplantation of bodies. Ascertaining of biological death of the person is established by the doctor or the medical assistant according to item 6 of Rules and made out in the special report, the approved Order.

The basic document is the Report of an establishment of death of a brain which matters for the termination reanimatsionnyh actions and for withdrawal of bodies. Reanimatsionnye the actions directed on maintenance of a life and restoration of the vital functions, stop only at their recognition absolutely unpromising. In the Report of an establishment of death of a brain data of all researches should be specified, to a surname, names and patronymics of doctors - members of the commission, their signature, date, hour of registration of death of a brain and, hence, death of the person.

In comparison with earlier operating Order, in the new document the special place occupies death of children, including newborns. By the established rules all reanimatsionnye actions for returning by a life should will come to the end within 10 minutes, resuscitation of the adult patient on time is allocated 30 minutes. In a case if during taken away time the given actions are recognised by absolutely unpromising they stop.

According to doctors-reanimatologov, the major innovation are the intervals fixed legislatively reanimatsionnyh actions – 10 minutes for newborns and 30 minutes for adults [219].

Possibility to accept procedure on ascertaining of death of the child on the basis of the diagnosis began further an overall objective of new rules. The similar document is in many countries of the world, but in Russia it is not present till now. Russian transplantologi cannot achieve legislative fastening of a children's posthumous donor service in any way. For today similar it is possible only with the consent of parents or trustees. Because of sharp shortage of children's donor bodies, the small patients, expecting transplantation, are forced to leave in foreign countries (more often to Europe) for reception of the given medical aid.

If strictly to follow that orders the law, it is necessary to wait, that also these impulses have stopped. But then already and bodies will withdraw it impossible – they will die, as well as all body [220].

In the course of an agony and dying of the patient viability of its bodies continues to fall, and by the death moment probably three outcomes:

1) the patient was lost, but viability of body which is supposed to be withdrawn in quality transplantanta, still is to some extent kept;

2) the death of the patient and death of body-transplantanta have come simultaneously;

3) viability of body is equal to zero, it was lost, and the patient still some time continues to live.

Modern achievements of medicine and the legal legislation define tendencies to definition of criteria of death which became a management at transplantation definition. Scientists have established, that various bodies have individual stability to an anoxia (to the termination of receipt of oxygen in a fabric). Oxygen tolerance (stability) of a liver is equal In normal temperature conditions to 10-25 minutes, kidneys – to 1 hour, lungs – 1,5 hours, corneas – 20 minutes, at heart stability is a little bit more [221]. On each body the detailed passport is filled - from whom is withdrawn, during what time, under what circumstances, who, to whom and where will replace. This formality is necessary on a case of unpredictable complications after change and for the subsequent treatment of the recipient. After all the transplanted patient for all life remains adhered to clinic in which the given operation was made.

Questions of ascertaining of death of the patient and the further withdrawal of its bodies always are in the field of ardent discussions and osuzhdeny, as from lawyers, and the scientists studying an ethical aspect of given procedure. The mechanism of ascertaining of death for today is transferred completely in conducting doctors. Coming back to earlier told, it would be desirable to pay once again attention that viability of bodies and fabrics of the person is rather short. If to be guided by this decision doctors cross the law, wishing to rescue a life of other patients requiring operations, which given interventions vital. It creates certain blanks in the law which directly are connected with qualification of crimes under the Criminal code of the Russian Federation. For example, murder with a view of use of bodies and fabrics sustained (the item "m" ch. 2 items 105 UK the Russian Federation), deliberate causing of heavy harm of health with a view of use of bodies or fabrics sustained (the item « »ch. 2 items 111 UK the Russian Federation), compulsion to withdrawal of bodies or fabrics of the person for transplantation (item 120 UK the Russian Federation), a human trafic with a view of withdrawal at the victim of bodies or fabrics (the item« »ch. 2 items 127.1 UK the Russian Federation) [222].

In our opinion it is necessary to expand a consultation of doctors which certify death of a brain and to include in its structure of the representative of organs of the Prosecutor's Office or the REGISTRY OFFICE. They, observing for reanimatsionnymi actions, can objectively size up and agree to withdrawal of bodies and fabrics of the person, having fixed its signature. It, in turn, will help to keep ability to live of bodies. Responsibility in this case will not lay on the doctors-transplantologah, the made decision will express common opinion.

The transplantology motto sounds optimistically and utverzhdajushche: «Leaving this life, do not take away with itself bodies. They are necessary to us here» [223]. However, as it was already marked, in 1992 the legislation of Russia has been brought into accord with principles of protection of the rights and advantages of the person in the medicine sphere, developed by the World organisation of public health services (CART). The basic position the CART of human rights on the body after death is reduced to a recognition of this right by analogy of human rights to dispose of the property after death.

The big question is caused by the accepted concept of not asked consent. According to Federal act item 8 «About transplantation of bodies and (or) fabrics of the person», the fence and use of bodies from a corpse is carried out, if died during lifetime did not state objections against it or if objections are not stated by its relatives. However withdrawal of bodies and (or) fabrics at a corpse is not supposed, if the establishment of public health services at the moment of withdrawal is advised that during lifetime the given person either its close relatives or the legal representative have declared the disagreement on withdrawal of its bodies and (or) fabrics after death for transplantation to the recipient.

Thereupon pertinently to address to judiciary practice. The full court on civil cases of the Saratov provincial court has addressed in the Constitutional Court of the Russian Federation with inquiry about check of constitutionality of article 8 of the Law of the Russian Federation from December, 22nd, 1992 «About transplantation of bodies and (or) fabrics of the person» (in edition from June, 20th, 2000) according to which withdrawal of bodies and (or) fabrics at a corpse is not supposed if the establishment of public health services at the moment of withdrawal is advised that during lifetime the given person either its close relatives or the legal representative have declared the disagreement on withdrawal of bodies and (or) fabrics after death for transplantation to the recipient.

As follows from the presented materials, by the decision of October regional court of a city of Saratov from September, 17th, 2002 it has been given up in satisfaction of the claim of citizen L.V.Zhitinsky to the Saratov regional hospital about collecting of moral harm. The requirements istitsa proved that from the certificate of medicolegal research of a corpse of her son who has deceased in given hospital, became known to it that employees of hospital from it with a view of transplantation had been withdrew both kidneys. It has not been advised of corresponding intention of doctors, and withdrawal is made without its consent. In the decree it was specified, that by article 8 of the Law of the Russian Federation «About transplantation of bodies and (or) fabrics of the person», coming under to application by given case consideration, the presumption of the consent of the citizen or its close relatives (representatives) on withdrawal after death of its bodies for transplantation is fixed.

The full court on civil cases of the Saratov provincial court where L.V.Zhitinsky has addressed with the appeal for review, having come to conclusion that article 8 of the Law of the Russian Federation «About transplantation of bodies and (or) fabrics of the person» mismatches the Constitution of the Russian Federation, has suspended manufacture on business and has directed to the Constitutional Court of the Russian Federation inquiry about check of its constitutionality.

The applicant notices, that the specified norm deprives of the citizen or its close relatives (representatives) of the right to will about the consent or disagreement to withdrawal of bodies and (or) fabrics from its body after death as does not establish a duty of establishments of public health services to find out lifetime will died or will of its close relatives (representatives) concerning such withdrawal. Besides, as it does not define the public health services establishment, obliged to keep account citizens, not consonants on withdrawal of bodies, and creation of bank of corresponding data is not provided, citizens are deprived possibility preliminary to fix the fact of the disagreement. It is not established in challenged norm and an order of the notice of citizens about death of the relative (principal), and also it is not underlined, to whom the duty is assigned to inform them on it; Thereby for citizens possibility to express the disagreement directly ahead of withdrawal of bodies in cases when death approach could not be expected is excluded. Thus, as withdrawal of donor bodies is made at once after ascertaining of death of the person, to relatives or legal representatives died, living in the remote areas, it is practically impossible to inform medical institution on the opinion.

The applicant approves, that owing to uncertainty and an ambiguity of article 8 of the Law of the Russian Federation «About transplantation of bodies and (or) fabrics of the person» the discretion of establishments of public health services concerning realisation of withdrawal at the died person of bodies for transplantation practically is not limited, than are broken human rights on the worthy relation to its body after death and an equality principle, and asks to recognise as its mismatching articles 2, 15, 17, 18, 19, 21, 45 and 55 Constitutions of the Russian Federation.

According to the Constitution of the Russian Federation the person, its rights and freedom are the higher value, and a recognition, observance and protection of the rights and freedom of the person and the citizen - a duty the states (article 2); everyone has the right to a life and a right to health protection and medical aid (article 20, a part 1; article 41, a part 1). Number of inalienable laws of the person concerns and fixed by article 22 (a part 1) Constitutions of the Russian Federation the right to the inviolability of person, excluding illegal influence to the person both in physical, and in mental sense, and «physical inviolability» is covered by concept not only the lifetime period of existence of a human body, but also necessary preconditions for a right protection of a body of the died person are created. In an equal measure it concerns and the right to the state protection of advantage of the person (article 21, a part 1, Constitutions of the Russian Federation), and also to human rights derivative of named constitutional laws on the worthy relation to its body after death.

Article 1 of the Law of the Russian Federation «About transplantation of bodies and (or) fabrics of the person» provides, that transplantation of bodies and (or) fabrics from the live donor or a corpse is applied only in case other medical means cannot guarantee preservation of a life of sick (recipient) or restoration of its health; withdrawal of bodies and (or) fabrics at the live donor is admissible only in case on the conclusion of a consultation of doctors-experts considerable harm will not be done to its health and can take place exclusively with the consent of the live donor; bodies and (or) fabrics of the person cannot be a purchase and sale subject; Purchase and sale of such bodies and (or) fabrics, and also advertising of these actions attract the criminal liability according to the legislation of the Russian Federation (in particular, the point "m" of a part of second article 105 UK of the Russian Federation provides responsibility for murder with a view of use of bodies or fabrics of the victim, by article 120 - for compulsion to withdrawal of bodies or fabrics of the person for transplantation, point of a part of second article 152 - for purchase and sale of the minor or fulfilment of other transactions in the form of transfer and occupancy by the minor with a view of withdrawal at it bodies or fabrics for transplantation).

Possibility at observance of certain conditions of withdrawal of bodies and (or) fabrics of the person for transplantation, no less than a compulsion interdiction to their withdrawal are fixed also by article 47 of Fundamentals of legislation of the Russian Federation about health protection of citizens.

Defining conditions and a transplantation order, in particular withdrawals of bodies and (or) fabrics at a corpse for the purpose of change to the recipient requiring it, the Federal act has established in article 8 of the Law of the Russian Federation «About transplantation of bodies and (or) fabrics of the person» unambiguously expressed interdiction for such withdrawal in a case when the establishment of public health services at the moment of withdrawal has been advised that during lifetime the given person either its close relatives or the legal representative have declared the disagreement on it.

Thus, the legislator in this case has selected model of a presumption of the consent to withdrawal of bodies and (or) fabrics of the person after his death («not asked consent» or «the prospective consent»), treating nevyrazhenie the person, its close relatives or legal representatives of the will or absence of the corresponding documents fixing this or that will as presence of positive will on realisation of such withdrawal - thus, that anybody after death cannot be subjected to the given procedure if it is known about the negative relation to it of the person, its close relatives, legal representatives.

Proceeding from it, challenged in inquiry of the Saratov provincial court article 8 of the Law of the Russian Federation «About transplantation of bodies and (or) fabrics of the person», containing the formula of a presumption of the consent to withdrawal with a view of transplantation of bodies (fabrics) of the person after his death, in itself is not not clear or uncertain that is why it can not be considered as breaking constitutional laws of citizens.

The consent presumption is based, on the one hand, on a recognition inhumane to set to relatives practically simultaneously with the message on death of the loved one or directly ahead of operation or other actions of medical character a question on withdrawal of its bodies (fabrics), and on the other hand - on the assumption proved by an actual condition of medicine in the country, that at the present stage of development of transplantology it is impossible to provide finding-out of will of the specified persons after death of the person in the terms providing safety of a transplant.

The Russian legislation does not interfere with citizens to fix in this or that form (including notarial) and to inform of public health services establishment the disagreement on withdrawal at them bodies and (or) fabrics after death with a view of transplantation, and infringement of corresponding will attracts approach of legal responsibility.

However, with a view of observance of balance of the rights and legitimate interests of donors and recipients - the questions connected with realisation by the citizen either its close relatives or legal representatives of the right to declare in writing or orally disagreement on withdrawal of bodies and (or) fabrics for transplantation, demand a detailed regulation [224].

As the proof to that the reference in November, 2014 serves E.V.Sablinoj, T.M.Birjukovoj and N.S.Sablinoj in «Zamoskvoretsky regional court of of Moscow with the statement of claim to GBUZ cities of Moscow« City clinical hospital № N.I.Pirogova's to 1 name of department of public health services of a city of Moscow », GBUZ cities of Moscow« City clinical hospital of a name of S.P.Botkin »and FGBU« the Federal centre of science of transplantology and artificial bodies of a name of academician V.A.Shumakov »Ministries of Health of the Russian Federation about indemnification of the moral harm caused by that E.V.Sablina has not been admitted to the daughter who were in reanimatsionnom branch, last day her lives, that claimants have not been informed on death of their daughter and the grand daughter, and also that its bodies have been withdrawn as transplants without informing and the consent of parents.

By the decision from the April, 7th, 2015, the court of appeal instance left without change, to applicants it has been given up in satisfaction of their requirements ».

In Definition of the Constitutional Court of the Russian Federation on the given case from February, 10th, 2016 № 224 «« About refusal in taking cognizance of the complaint of citizens Birjukovoj Tatyana Mihajlovny, Sablinoj Elena Vladimirovny and Sablinoj Nelli Stepanovny on infringement of their constitutional laws by article 8 of the Law of the Russian Federation «About transplantation of bodies and (or) fabrics of the person» », the Court has once again underlined, that containing in article 8 of the Law of the Russian Federation« About transplantation of bodies and (or) fabrics of the person »the presumption of the consent in the field of a donor service of bodies cannot be considered as breaking constitutional laws of applicants.

Moreover, the model of legal regulation based on a presumption of the consent to posthumous withdrawal of bodies and (or) fabrics for transplantation established by the Russian legislator, is not - contrary to the statement of applicants - an exception in world practice and as a whole is based on the conventional principles and the norms of the international law allocating the state by the right of legislative regulation of specified questions, taking into consideration a basic principle - human rights observance on inviolability of person [225]. That fact, that now the specified international legal certificates are not signed and not ratified by the Russian Federation, does not exclude possibility of the account and use of their positions at formation of the Russian legislation in transplantation sphere.

The constitutional Court of the Russian Federation also has informed, that now according to point 15 of the Complex of the measures directed on perfection of rendering of medical aid to the population on the basis of a government program of the Russian Federation «public health services Development», approved by the order of the Government of the Russian Federation from February, 28th, 2013 № 267-r, Ministry of Health of the Russian Federation develops and brings in the Government of the Russian Federation the draught federal law «About a donor service of bodies, parts of bodies of the person and their transplantation».

The specified bill presented for public discussion on an Internet site of Ministry of Health of the Russian Federation, assumes in development of positions of article 47 of the Federal act «About bases of health protection of citizens in the Russian Federation» and with a view of achievement bolshej a transparency of all process of a donor service of bodies of the person and their transplantation conducting the Federal register of donors of bodies by Ministry of Health of the Russian Federation, recipients and the donor bodies, consisting of four registers (the Register of wills of citizens about the consent or disagreement to withdrawal of their bodies after death with a view of transplantation to the potential recipient; the Register of donors at a posthumous donor service of bodies and the bodies withdrawn at its realisation with a view of transplantation to the potential recipient; the Register of the lifetime donors who have given during lifetime the bodies with a view of related transplantation, and the bodies given with a view of transplantation; The register of recipients and the bodies given with a view of transplantation).

The bill provides more detailed procedure of expression by the citizen of corresponding will, including in the oral form, the account of wills, reception by the medical organisation of the information on presence (absence) of will of the citizen, realisation by close relatives of the right to declare disagreement on withdrawal of bodies in case of absence of will of the citizen, including their informing on ascertaining of death of the citizen which is accompanied by documenting (fixing) of made actions.

Draught federal law discussion «About a donor service of bodies, parts of bodies of the person both their transplantation» and the developed public discussion on most pressing questions of considered medical branch - reflects democratic process of development of the rational, proved and fair legislative decision on the basis of a public consensus for maintenance of balance of interests of donors and recipients. Only carrying out of free public discussion on so important question what the standard model of expression of the consent to withdrawal of bodies and fabrics of the person after his death for transplantation is, will allow to develop the variant of its permission answering to the constitutional purposes and values and simultaneously reflecting existing social (ethical, moral, religious) preferences. It will allow also - without dependence from the selected model of a legislative regulation of rules of reception of the consent to withdrawal of bodies of the person after his death - to put in pawn a basis of wide informing of the population about such rules [226].

Absence of the expressed refusal is treated as the consent. From this it is possible to draw a conclusion, that any physically healthy Russian in case of the heavy trauma incompatible with a life, can become the donor of bodies. For this purpose neither the consent of the person, nor the consent of its relatives it is not required. The unwillingness only obviously expressed during lifetime or its express prohibition native on withdrawal is taken into consideration. In the Law as it is told nothing that it is necessary for doctors to find relatives to ask their consent. In case of withdrawal of bodies of an abacus goes for minutes. The following problem when native donors extremely are indignant from here follows, having learnt about withdrawal of bodies. In this case it is necessary to notice, that the major condition for realisation of human rights or its relatives on refusal of withdrawal of bodies, full knowledge of the population of an essence of this right and of mechanisms of fixing of the refusal is. However for today the majority of the population does not know, that under the Law all Russians agree to be donors, and the doctor is not obliged to ask the consent relatives died, does not know the mechanism of registration of lifetime refusal.

P.D.Tishchenko notices that circumstance, that the refusal mechanism is explained only in the departmental instruction of Ministry of Health that is material breach of the rights of citizens [227].

In the Law the presumption of absence of the consent should be fixed. According to M.N.Maleinoj, «in the absence of orders of the person concerning its bodies and fabrics causa mortis the consent of strictly certain persons should be asked always and without fail» [228].

A.N.Golovistikova estimates attempts to enter a disagreement presumption as an untimely step: «If to enter such system now... That will be serious problems. I am afraid, a little, who will agree to become the donor therefore donors will not appear at all, and them and so it is not enough» [229].

We consider, that it is difficult to agree with the given opinion, considering existing criminalisation and kommertsializatsiju in the field of transplantation of bodies, nobody can guarantee safety of a life to the person. If to adhere to the given model in a root the basic principle of the voluntary informed consent of the patient is broken, the personal rights on definition of destiny of the physical body for what calls the international community that is reflected in corresponding international legal certificates of General Assembly of the United Nations, the World Organization of Public health services and the Council of Europe on struggle against trade in human bodies are absolutely broken.

The second model are so-called «the asked consent» (post mortem) which means, that before the death died obviously declared the consent to body withdrawal, or the member of a family accurately expresses the consent to withdrawal in that case when the died has not left the similar statement. The doctrine of "the asked consent» assumes certain documentary acknowledgement of "consent". An example of the similar document are «cards of the donor», received in the USA those who states the consent to a donor service. The doctrine of "the asked consent» is accepted in legislations on public health services of the USA, Germany, Canada, France, Italy, Sweden, Portugal, Australia.

Experts believe, that the principle «a consent presumption» is more effective, more corresponds to the purposes and interests of clinical transplantation. Russian transplantologi consider, that «process of reception of the consent to withdrawal of bodies still is in our country a major factor constraining development (expansion) of a donor service». The direct reference of doctors to the patient or its relatives («the asked consent») owing to cultural-historical features of Russia, as a rule, does not cause reciprocal movement (one researchers name it «insufficient civilisation», and others - «moral keenness»), At the same time acceptance by the doctor of the decision on «not asked consent» in the conditions of almost full neinformirovannosti the population on legal questions organnogo donor services can have further negative consequences for the official from relatives died [230].

In earlier operating Order of Ministry of Health of the Russian Federation from December, 10th, 1996 (has become invalid the Order of Ministry of Health of the Russian Federation from September, 14th, 2001 № 361) «About introduction in practice of rules of manufacture of forensic pathologies», the order of withdrawal of bodies and (or) fabrics of the person has been accurately reflected. So, in items 7 it was provided, that withdrawal of bodies and (or) fabrics of the person for transplantation is supposed with observance of requirements of the Law of the Russian Federation «About transplantation of bodies and (or) fabrics of the person» and compulsory attendance of the medicolegal expert was required. In the conclusion the expert specified, by whom and what bodies and (or) fabrics have been withdrawn. Thus given intervention should not interfere with diagnostics at the subsequent forensic pathology of a corpse and lead obezobrazhivaniju a corpse. Responsibility for observance of the listed requirements was born by the doctors making withdrawal of bodies and (or) fabrics from a corpse, and the medicolegal expert present thus. For today, in the Order of Ministry of Health and social development of the Russian Federation from May, 12th, 2010 № 346н «About the statement of an order of the organisation and manufacture of forensic pathologies in the state judicial-expert establishments of the Russian Federation» [231] the formulation that withdrawal and preparation of bodies and (or) fabrics of the person for transplantation, and also for the clinical, scientific and uchebno-methodical purposes are carried out according to the current legislation of the Russian Federation sounds only.

In connection with the above-stated it is necessary to specify, that else in 1987 on ХХХIХ sessions of the World Medical Assembly the Declaration on transplantation of human bodies has been approved. In the given document the commercial donor service has been subjected sharp condemnation. Taking into consideration variety of systems of public health services and the right, and also after extensive consultations of experts the World organisation of public health services (CART) has developed the Arch of basic principles concerning transplantology. In 1991 44 session the CART has approved these principles and recommended to the states to be guided by them at development of a policy in the given area.

The disturbing information on this question has been promulgated in the Russian press [232]. According to deputy Mossoveta A.I.Mironenko, in the early nineties in Moscow commercial activity in the field of transplantology under the pretext of reception of currency for treatment of domestic sick patients has started to develop. One of the first the agreement with the Italian firm for donor maintenance of patients was abroad concluded by Institute of transplantology and artificial bodies in the name of its management. The entered into agreement between a domestic-owned firm "Ekomed", the first aid created on the basis of Institute of A.V.Sklifosovsky, and its foreign counterpart on delivery of 600 kidneys in a year with instructions of intensity of delivery [233] became property of publicity also. Mossovet has considered developed situation and on May, 13th, 1992 has made the decision «On commercial activity in the field of transplantation of human bodies» in which has directly specified in documents available in the standing committee (contracts, dogovory, the agency agreement), confirming intentions of change of human bodies on a commercial basis for the purpose of reception of incomes in HARD CURRENCY [234] (hard currency).

According to item 1 of the Law of the Russian Federation «About transplantation of bodies and (or) fabrics of the person» the last cannot be a purchase and sale subject. Purchase and sale of bodies and (or) fabrics of the person, and also advertising of these actions attract the criminal liability according to the legislation of the Russian Federation. In the same law in item 15 the interdiction to medical institutions which have the right to perform operations on a fence and preparation of bodies and (or) fabrics, on their sale is established. However now UK the Russian Federation does not contain any article in which responsibility for similar act sorts would be established. Certainly, at desire it would be possible to use item 175 UK the Russian Federation «Acquisition or sale of the property obviously extracted criminal by». But, first, bodies and fabrics of the person hardly fall under the term "property"; Secondly, at similar qualification from a circle of crimes cases of purchase and sale of lawfully extracted anatomic segments of a body of the person (that is inadmissible) will drop out; and, thirdly, now to subjects of the crime provided by item 175 UK the Russian Federation, radioactive materials, the weapon, an ammunition, explosives, explosive, strong, poisonous and psychotropic substances, the narcotics which illegal circulation is punished under item 220, 222, 228, 234, UK the Russian Federation do not concern. It is connected by that the given subjects concern a category limited in the civil circulation or withdrawn of it. It is represented, that bodies and fabrics of the person also concern such subjects, and, hence, public relations in sphere of their turn should have special criminally-legal regulation [235]. Therefore it would be logical to add operating UK the Russian Federation with article «Illegal circulation of bodies and fabrics of the person». Thus the disposition of given article could be formulated thus: «illegal acquisition, and is equal storage, transportation or transfer with a view of sale, sale of bodies or fabrics of the person, and equally advertising of the given actions» [236].

Pertinently to assume, that the person who has illegally withdrawn body, can commit the given crime not only for the purpose of profit extraction, having sold it, but also for rescue of a life of the close relative or itself. Also bodies can be withdrawn for fetishism (I.V.Kushnir concretises that use of bodies and fabrics of the victim can be with a view of sexual fetishism [237]) or the religious purposes. In this case we see, that there is no sales objective. In our opinion, it is expedient to expand article disposition, having formulated it thus: «illegal acquisition, storage, transportation transfer with a view of sale or use of bodies and either) fabrics of the person or advertising of the given actions and fetishism».

Dekommertsializatsija changes of bodies and (or) fabrics consists in gratuitousness of rendering of all parties of realisation of transplantation of bodies and fabrics. Here it is a question both of possibility of search of a suitable transplant, and about granting of bodies or fabrics. The way of a paid donor service, probably, is capable to increase some quantity of carried out transplantations, however such approach is unacceptable for some reasons. «First of all, the way of a paid donor service is immoral, as those who in a condition to pay for them the big money can receive bodies only. The payment for body undermines the system of a donor service based on altruism and humanism» [238].

The morals at all the, are actually broken an equality principle. Everyone has the right to rendering to it of the qualified medical aid, but at kommertsializatsii donor services will be equal only those who is most financially well-founded.

Certainly, transplantation of bodies is a high risk. However, according to V.I.Akopova, risky actions should be directed only for achievement of socially useful purpose for the person which in medical practice preservations of a life and health of the patient or causing to it of smaller harm to health concern, in comparison with the available. Thus benefit should concern not the physician, but only its patient [239].

Timely and actual it is possible to consider fastening of inadmissibility of sale of bodies and (or) fabrics of the person in the basic act on transplantation in our country: «to establishment of public health services it is authorised to them to perform operations on a fence and preparation of bodies and (or) fabrics at a corpse, it is forbidden to carry out their sale» [240]. It is represented, that the given position should concern and questions of an exchange with transplants between the medical centres and transplantatsionnymi communities. All basic international documents on transplantation of bodies and fabrics provide bar of claim by lapse of time kommertsializatsii changes. « Purchase and sale of human bodies is strictly condemned »– the declaration of the World medical association on transplantation of human bodies proclaims. Expanding this interpretation, an interdiction on vozmezdnye relations at realisation of transplantation of bodies and fabrics should concern and other parties of the given kind of treatment. In a general sense, a rule should be position according to which mutual relations between the patient and the doctor in transplantology« are defined, on the one hand, by a constitutional law of each person on reception of free medical aid, and with another – the constitutional duty of the state in the name of state and public health services municipal authorities to render such help »[241].

In 2008 135 countries, including Russia, have signed the Istanbul declaration which has established a barrier to commercial transplantation. In these countries have made decision to spend transplantation of bodies only for the citizens because donor bodies do not suffice all over the world. And to assist foreigners it is possible only in case demand in the country is satisfied.

Now in the Criminal code of the Russian Federation some articles devoted to crimes, connected with transplantation contain:

1) the item "m" ch. 2 items 105 «Murder with a view of use of bodies or fabrics of the victim».

Analyzing norm of specified article, it is necessary to understand, that the given crime can make any person, however it is represented, that for real use of the withdrawn body presence of the medical worker which possesses certain knowledge in the field of transplantation of bodies is necessary.

This crime as ended cannot be made without participation of medical workers of very high qualification. According to the academician V.Shumakov, possibility of fulfilment of murder with performance of a full cycle of change of body in Russia it is improbable. Ten highly skilled doctors should participate in this operation at least, therefore spend body withdrawal in house conditions, out of clinic, in Russia is unreal, and to replace body – especially [242].

2) item 111 item «Deliberate causing of heavy harm to the health, made with a view of use of bodies or fabrics of the victim».

The harm caused to health of the person, is understood as infringement of anatomic integrity and physiological function of bodies and fabrics of the person as a result of influence of physical, chemical, biological and mental factors of an environment [243].

Under deliberate injury to health, according to the item of item 111 UK the Russian Federation, is understood the injury to health expressed as in operation, and in inactivity of any body which has entailed loss or loss by body of its functions. As the qualifying sign is considered fulfilment of the same acts, concerning persons, in connection with realisation of an office debt by them, with a view of use of bodies or fabrics of the victim [244].

3) item 120 «Compulsion to withdrawal of bodies or fabrics of the person for transplantation».

Special danger is represented by compulsion cases to withdrawal of bodies or fabrics for the purpose of the subsequent transplantation. It also was the main reason of introduction of the new corpus delicti in the Criminal code of the Russian Federation. According to item 120, compulsion to withdrawal of bodies or fabrics of the person, made with application of violence or with threat of its application, is punished by imprisonment for the term up to four years with the debaring to occupy certain posts or to be engaged in certain activity for the term up to three years or without that. The same act made concerning the person, obviously for guilty being in a helpless condition or in material or other dependence from guilty, is punished by imprisonment for the term from two till five years with the debaring to occupy certain posts or to be engaged in certain activity for the term up to three years or without that.

It is necessary to understand as compulsion as mental and (or) physical pressure upon the victim in any form. Here there can be any forms of threats, offers of gifts or money, promises, physical violence or violent dostavlenija in medical institution for manufacture of compulsory operation [245].

However the legislator directly does not specify in what taken bodies of the person are provided as compulsion to their withdrawal. It is understood, proceeding from position of the criminal legislation, that any bodies of the person including not entering into the List of objects for transplantation also will constitute the corpus delicti [246].

The crime under item 120 UK is considered the Russian Federation ended irrespective of, whether it was possible to guilty persons to incline someone to withdrawal of bodies and fabrics. The specified crime is made only with the express intent. The desire concerns motive of a crime to catch human bodies and fabrics for transplantation [247].

Consider expedient to add analyzed point, having added in it an interdiction for illegal withdrawal of any bodies or fabrics, and also parts of a body of a human body.

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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 3.1. Problems of legislative maintenance of transplantation and counteraction to an illegal turn of bodies of the person in the Russian Federation:

  1. 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
  2. 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
  3. 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
  4. 1.2. The factors influencing growth of an illegal transnational turn of bodies of a human body
  5. 1.1. Formation of transplantology and a problem of illegal withdrawal and a turn of bodies of a human body
  6. §4. Implementatsija international legal norms on counteraction to illegal circulation of human bodies in the interstate legislation
  7. 2.6. Problems and prospects of modernisation of the organisation-legal mechanism of maintenance of constitutional laws and freedom of the person and the citizen in the Russian Federation
  8. Chapter 2. International legal mechanisms of counteraction to illegal circulation of human bodies and problems implementatsii international legal norms in the national legislation
  9. 2.3. A role of the international non-governmental organisations in sphere of prevention of an illegal turn of bodies of a human body
  10. CHAPTER 2. PROBLEMS of PERFECTION of the LEGISLATION On LEGISLATIVE (REPRESENTATIVE) PUBLIC AUTHORITIES of SUBJECTS of the Russian Federation
  11. problems and prospects of cooperation of the Russian Federation within the limits of ODKB, the CIS, SHOS in the field of military goods turn
  12. CHAPTER 1. The General characteristic of occurrence and an aggravation of a problem of an illegal transnational turn of bodies of a human body