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universul juridic magazin
Revista Română de Drept Privat

The new legal provisions concerning the human organ, tissue and cell removal and transplantation for therapeutic purposes

The existence of the natural person depends on the existence of the human body and human life. In the ancient times, the body was considered a component of the human person, but law has dealt with his protection two millennia later. Throughout history, two powerful forces have pushed back the body: one of religious origin, and the other of philosophical origin. Descartes stated: “I think, therefore I am”, hence resulting in an association between the body and the person, allowing for his/ her affiliation to the matter of things, things that may not be owned or alienated, however, things. That causes the question: does the person own his/her body or is he/she only its beneficial owner? This debate transposes the estate-related terminology to the person and is likely to mix two orders of values. The human body is not a thing; it is the person himself/herself. It is about being, not about possessing. The opportunities offered by modern science and medicine led lawmakers to regulate the civil status of human body under Law no. 2/1998, repealed by Law no. 95/2006 on the healthcare reform (title VI). We must make a clear distinction between the human body considered as a group of organs, on the one hand, and on the other hand, the elements (organs, tissues) and the product (blood, sperm etc.) of the human body, which may be released from it, however, they may not represent the object of a property right [art. 144 paragraph 1 letter f)]. The author carries out a detailed analysis of Law no. 95/2006. The analysis focuses on the removal of organs, tissues and cells from a living person; law authorizes these practices, however, it subjects them to certain restrictive conditions. Then, the law permits the removal of organs after death has been established, for therapeutic reasons, from the body of a deceased person who did not clearly indicate, during his/her life, the refusal to the removal of an organ after his/her death, with the agreement of one of his/her family members. However, the removal of organs may not take place against the expressed will, before his/her death, according to de cuius principle and this refusal must have been expressed in the manner provided for under the law. Finally, the author deals with the removal of human organs, tissues and cells, which may not take place against the recipient’s will. The article alerts readers to numerous sensitive issues related to human body.