In the context of medical sciences, the human being has devised multiple techniques involving various therapeutic procedures to improve his health and combat the diseases that afflict him. One of these procedures is organ, tissue and cell transplantation, whereby a damaged organ is replaced by a healthy one.
Organ, tissue and cell transplantation in Venezuela—for instance—has been one of the most relevant issues in the last four decades. However, it remains strictly taboo among Venezuelans generally due to ignorance or religious standpoints. Despite this, for part of the population, donating an organ represents the prolongation of life and, for another, it is an act of giving whose origin is the deep awareness of the pain of others. Still, the absence of a culture of organ donation may give rise to other problems.
It is also a highly controversial subject since it is fraught with many emotions and moral and ethical factors that revolve around human dignity in terms of existence. These factors are imposed, along with the social and legal guarantees that this implies, so that life is an end, not a means.
In the current Venezuelan legislation, for example, organ donation for transplantation includes two types: express donation, based on respect for the autonomy of the human being—that is, his documented wishes on the use of his organs for transplantation before or after his death—, and tacit donation, when the subject has already been declared dead and there is no documented refusal to use his organs for transplantation.
Both types of donation may generally have ethical-legal implications, particularly, in relation to express donation, when referring to the will to donate, which may be made in life through a written document called “Presumed Express Consent” or “Informed Consent”, which guarantees that the subject has voluntarily stated his intention to participate as an organ donor after his death.
Then, in the absence of such information, the responsibility to accept or reject the therapeutic organ transplant falls, first, on the representative legally appointed by the subject before becoming incompetent or dying or, second, on the closest relative.
As this consent is a very personal gesture, it conveys nuances about life and death, health and illness, human dignity, solidarity and altruism, concepts based on the bioethical principles of autonomy and doing good. But it can also involve legal aspects that regulate the process of organ, tissue and cell donation, extraction and transplantation in humans. The informed consent must be the very essence of organ, tissue and cell donation.
However, in Venezuela, the new law implemented in 2011, whose Articles 27 and 42 provide that all residents of the country are presumed organ, tissue and cell donors for therapeutic purposes unless otherwise stated—that is to say, if the individual does not express his desire not to be a donor, the Venezuelan State will subrogate this action—, is to many an abuse by the State of the bodies of people and a decision that tramples on the principle of autonomy.
This is the debate sparked off by this law that tries to impose the presumed donation consent. If we considered the Universal Declaration of Human Rights, which claims the right to health and self-determination as part of the right to life, current legal regulations on organ and tissue donation and transplantation would turn into a coercive measure of the State that violates elementary ethical and legal principles.
The article “Aspectos éticos y jurídicos de la donación y el trasplante de órganos y tejidos en Venezuela” in the Colombia Forense journal explores some of these factors that involve the ethical-moral perspective, that is, factors related to bioethics in the context of biolaw, which are sciences that regulate or solve these bioethical dilemmas arising from the imposition of a law on organ, tissue and cell donation.
To conclude this note, it is necessary to understand that organ, tissue and cell donation for transplantation, besides being a medical-scientific act, is an ethical and legal act—strictly speaking—because it produces certain legal effects that set off a chain of events (medical examination of donor and recipient, search for a suitable donor, organ extraction, etc.), each with its particular legal effectiveness that may be administrative, civil, disciplinary and, of course, criminal.