Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.39 N° 71
2021
Recibido el 09/09/2021 Aceptado el 12/11/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
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Vol. 39, Nº 71 (2021), 458-471
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
About the need to introduce a
presumption of consent for organs
transplantation and other human
anatomical materials
DOI: https://doi.org/10.46398/cuestpol.3971.25
Liliya Pороva *
Svitlana Pороva **
Hrуhorii Krainyk ***
Iryna Bandurka ****
Olena Fedosova *****
Abstract
The purpose of the article is to discuss the need to introduce
a presumption of consent for the transplantation of organs
and other human anatomical materials in Ukraine. Therefore,
the object of the study is the presumption of consent for organ
transplantation. The authors of the article have used methods of deduction,
analysis and synthesis, comparative, and legal methods. The need to make
amendments to the legislation of Ukraine regarding the introduction of the
presumption of consent for the transplantation of organs and other human
anatomical materials from a person and the feasibility of the practical
implementation of these changes, namely, mean a major improvement and
elimination of problems in the eld of transplantation. It is concluded that
at present one of the main problems governing the matter is the absence of
presumption of consent for transplantation in Ukrainian legislation and, at
the same time, the lack of signicant funding of the medical sector, together
with the low awareness of the rights of actors involved in organ transplant
processes.
Keywords: presumption of consent; organ transplantation; human
anatomical materials; medical help; presumption of consent.
* Department of Finance and Credit, Kharkiv National University of Сivil Engineering and Architecture,
Ukraine. ORCID ID: https://orcid.org/0000-0001-8255-8363
** Department of Law Enforcement and Police Studies, Kharkiv National University of Internal Aairs,
Ukraine. ORCID ID: https://orcid.org/0000-0002-3958-4133
*** Department of Criminal-law Disciplines and Administrative Law, KHARKIV UNIVERSITY, Ukraine.
ORCID ID: https://orcid.org/0000-0001-7018-7710
**** Department of Criminal Law and Criminology, Kharkiv National University of Internal Aairs,
Ukraine. ORCID ID: https://orcid.org/0000-0002-9697-5587
***** Research Laboratory on Combating Crime Problems, Kharkiv National University of Internal Aairs,
Ukraine. ORCID ID: https://orcid.org/0000-0002-5577-8333
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CUESTIONES POLÍTICAS
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Sobre la necesidad de introducir una presunción de
consentimiento para el trasplante de órganos y otros
materiales anatómicos humanos
Resumen
El propósito del artículo es discutir la necesidad de introducir una
presunción de consentimiento para el trasplante de órganos y otros
materiales anatómicos humanos en Ucrania. Por lo tanto, el objeto del
estudio es la presunción de consentimiento para el trasplante de órganos. Los
autores del artículo han utilizado métodos de deducción, análisis y síntesis,
comparativos y métodos legales. La necesidad de realizar enmiendas a la
legislación de Ucrania con respecto a la introducción de la presunción de
consentimiento para el trasplante de órganos y otros materiales anatómicos
humanos de una persona y la viabilidad de la aplicación práctica de estos
cambios, a saber, signican una mejora importante y la eliminación de
problemas en el ámbito del trasplante. Se concluye que en la actualidad
uno de los principales problemas que rigen la materia es la ausencia de
presunción de consentimiento para el trasplante en la legislación de Ucrania
y, al mismo tiempo, la falta de nanciación signicativa del sector médico,
junto a la baja conciencia sobre los derechos de los actores involucrados en
los procesos de trasplantes de órganos.
Palabras clave: presunción de consentimiento; trasplante de órganos;
materiales anatómicos humanos; ayuda médica;
presunción de consentimiento.
Introduction
Particular attention is paid to the relevance and expediency of disclosing
the issue of the need for organ transplants as a way of treating and saving
human life, as well as studying the issue of Ukraine’s experience regarding
the presumption of consent for transplantation.
The article examines the experience of countries with a presumption of
consent for organ transplantation and other anatomical materials, and the
necessity of implementation of this practice in Ukraine is proved.
1. Methodology and Methods
The authors of the article have used methods of deduction, analysis and
synthesis, comparative and legal methods.
460
Liliya Pороva, Svitlana Pороva, Hrуhorii Krainyk, Iryna Bandurka y Olena Fedosova
About the need to introduce a presumption of consent for organs transplantation and other
human anatomical materials
Each year in Ukraine more than 5 thousand people need transplants.
Without waiting for a transplant, 7 people die every day. It is impossible
to change the situation in Ukraine with transplantation of organs and
tissues for the better without changes to the national legislation - rst of all,
Article 16 of the Law of Ukraine «On the application of transplantation of
anatomical materials to a person» of 17 May 2018, which entered into force
on January 1, 2019 (Law of Ukraine № 2427-VIII, 2018).
Section 7, paragraph 4, «Final and transitional provisions» of the Law
of Ukraine «On the Application of the Transplantation of Anatomical
Materials to a person» of May 17, 2018 stipulated that the Cabinet of
Ministers of Ukraine before the enactment of this Law should ensure the
development and approval of a number of by-laws required for its proper
implementation, as well as to ensure the establishment and functioning
of the Unied State Information System of Transplantation, the work
of which involves the practical implementation of the provisions of the
said Law (Law of Ukraine № 2427-VIII, 2018). That is, the Cabinet of
Ministers of Ukraine and its subordinate Ministry of Health of Ukraine
showed negligence and incompetence, which prevented from carrying out
transplant operations in Ukraine from thе 1 of January, 2019.
The purpose of the article is to prove the necessity of introducing
a presumption of consent for organ transplantation and other human
anatomical materials in Ukraine.
Researchers such as Krainуk Н., Vakulovich E., Popova S., Sachuk B.,
Shklyarska O., Gel A. etc, after analyzing the experience of countries with a
presumption of consent for transplantation, came to the conclusion that it
should be supported by the introduction presumption of consent for organ
transplantation and other anatomical materials in Ukraine (Krainyk and
Sachuk, 2018; Krainyk et al., 2019; Shklyarska, 2017; Gel, 2018).
The article provides various arguments to support the introduction
of the presumption of consent for transplantation in Ukraine, as well as
the authors’ suggestions on specic changes in the legislation of Ukraine
concerning the solution of this issue are covered. At the same time, Trinova
Y.A., Chebotareva G.V. and some other researchers oppose the presumption
of consent for transplantation in Ukraine.
2. Results and Discussion
In some countries, there is a presumption of consent for transplantation
(India, the United States of America, the Russian Federation, the Kingdom
of Spain, the Republic of Poland etc.), which consists in the fact that every
adult citizen of the state automatically becomes a posthumous donor, if
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during his life he did not express disagreement with the transplantation.
The positive experience of these countries is based on the knowledge of
psychology, when mostly young people (whose death can be caused by
accidents in trac accidents, in work or through re-ghting injuries) do
not think at all that they can die, especially since what will happen their
organs, and therefore do not write the wills and do not give instructions to
their relatives about the use of their organs after death.
As for the relatives of the deceased, they are primarily concerned with
the burial issues and do not think that the bodies or tissues of their deceased
relatives can save somebody’s life, and some simply do not want to do this.
Data from medicine show that often transplantation is the only chance to
save people’s lives. But there is one important detail on this issue: certain
organs can be transplanted in just a few hours.
Article 3 of the Constitution of Ukraine states: «The person, his life and
health, integrity and safety are recognized in Ukraine as the highest social
value», Article 8 of the Constitution of Ukraine contains the provision that
«Ukraine is a law-governed state, laws and regulations must comply with
the Constitution» (The Constitution of Ukraine, 1996).
From this it follows that in case of non-compliance with the normative
acts of the Constitution of Ukraine, they are subject to cancellation or
bringing into compliance with the provisions of the Constitution of our
state - the Constitution of Ukraine.
Consider the provisions of the Law of Ukraine «On the Transplantation
of Bodies and Other Anatomical Materials to a person» from the 16 of July,
1999 (Law of Ukraine № 1007-XIV, 1999). Article 16 of this law contained
the provision that a person should always consent to transplantation (this
is a presumption of disagreement with transplantation). This law expired
in January 2019. Instead, the provisions of the new Law of Ukraine «On the
application of transplantation of anatomical materials to a person» from
the 17 of of May, 2018 (which came into force in January 2019) also do not
signicantly change the situation with transplantation, since Article 16 also
implies a presumption of disagreement on transplantation (Law of Ukraine
№ 2427-VIII, 2018), which does not meet the needs of Ukrainian society.
Currently, there are only ve transplantation centers in Ukraine that
carry out kidney, liver and heart transplantation operations (interesting
fact is that over the past twenty years in Ukraine, only 8 heart transplants
have been performed, if necessary, in 1000-1500 transplantations ), for
comparison, in the Kingdom of Spain, for 47 million people, more than 40
transplantation centers, the average number of transplants ranges from 98
to 115 transplants per year (Krainyk and Sachuk, 2018).
Musienko A.V. recommends the adoption of standards regulating
the organ and tissue transplantation, in accordance with the Guidelines
462
Liliya Pороva, Svitlana Pороva, Hrуhorii Krainyk, Iryna Bandurka y Olena Fedosova
About the need to introduce a presumption of consent for organs transplantation and other
human anatomical materials
developed by the World Health Organization and the World Health
Organization, to organize bilateral and regional cooperation on the basis
of the development of common standards, guided by the conventions
and recommendations adopted by the Council of Europe, as well as bring
domestic legislation in line with these general principles (Musiyenko,
2004).
Of great importance in considering the question of transplantation
plays a religious factor. In Ukraine, according to religious beliefs, the
majority are Christians (over 80%). They are diametrically opposite to the
question of transplantation. Some, recognizing the provisions of Article 3
of the Constitution of Ukraine, do not oppose transplantation and do not
object to it, referring to the Bible’s position on love for one’s neighbor, the
need to preserve the life of a Christian for his family and for the church.
Another position is taken by the Russian Orthodox Church, the Moscow
Patriarchate (in Ukraine, it calls itself the Ukrainian Orthodox Church),
which has millions of Ukrainian citizens. She insists that transplantation is
unacceptable. But at the same time, members of the church use the services
of doctors, including in need of surgical intervention, and other benets of
civilization.
It should be noted that there are no scientically substantiated arguments
regarding the prohibition of transplantation or the presumption of consent
for the transplantation of organs and other human anatomical materials in
Ukraine from a legal, economic, or religious point of view.
From the legal point of view, the prohibition of transplantation or
the prohibition of consenting to the transplantation of organs and other
anatomical materials of a person contravenes Article 3 of the Constitution
of Ukraine. From an economic point of view, such a ban is unprotable for
the church, since the money that may be earned by church ministers in the
funeral ceremony is much smaller than those who would bring a Christian
to a church for their lifetime (and in case of creation family - and his
descendants). In any case, the church can still receive money at the human
burial ceremony, but later.
From a religious point of view - there is no commandment in the Bible
about the prohibition of transplantation, but there is a commandment
to love one’s neighbor as himself. Therefore, one should approach this
issue with concrete proposals. Thus, some churches need to change their
unconstitutional position; otherwise, those churches that carry out anti-
constitutional activities and destructively aect the consciousness of
Ukrainian citizens should be held responsible for violating the law. It is
proposed to impose penal sanctions on such churches or even to close them
when the church promotes, for example, the renunciation of medicine, the
prohibition of transplantation.
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It is a fact that some Ukrainian citizens do not consider the
possibility of transplantation through the mass media reports of «black
transplantologists».
According to the Institute of the heart statistics, most Ukrainians are
not ready to become donors. Only about 10% of respondents agreed to
donate after death. Cardiac surgeon Boris Todurov, director of the Institute
of the heart, believes that the reason for the ignorance of society, what is
transplantology; unfortunately, in Ukraine, the majority of the media tell
about transplantologists, as people who want to take away other organs,
and represent transplantology as a science of organ harvesting. In fact,
transplantology is a science of how to save incurably sick people. In 2010,
criminal cases were opened on «black transplantologists». This undermined
the credibility of all transplantation in society, although no evidence of
guilty surgeons was given (Institute of Heart of Ukraine).
However, there are positive examples in Ukraine - one of the channels
clearly explained in a number of reports that the presumption of consent
for transplantation is very important for every citizen of the state, and that
without a number of measures, including the register of transplant patients
who need organ transplants, they threatened with inevitable death, while
the dead bodies of their bodies are no longer needed.
The main arguments against the presumption of consent for
transplantation are:
1. Religious. In some religions, there is a ban on transplantation of
organs from a deceased donor, only a living person who has given
consent to transplantation can be a donor. This prohibition operates
in Judaism, Islam, Buddhism.
2. Legal. Possible violations of human rights during transplantation.
Chebotareva G.V. takes the stand against the presumption of consent for
transplantation. The investigator concludes that the current legislation on
transplantation «the model of the presumption of disagreement corresponds
to the generally recognized international law of the legal provision on the
need for a man’s life consent to the removal of organs or tissues after her
death, or the corresponding consent of the authorized persons after the
death of a person and corresponds to world trends unication of legislation
and the development of common standards of legal regulation in this area»
(Chebotareva, 2003: 12-13).
Y. Trynova, after analyzing the pros and cons of the consent for
transplantation, concluded that it would be appropriate to preserve the
presumption of disagreement on transplantation, taking into account the
risks to potential donors (Trynova, 2015).
464
Liliya Pороva, Svitlana Pороva, Hrуhorii Krainyk, Iryna Bandurka y Olena Fedosova
About the need to introduce a presumption of consent for organs transplantation and other
human anatomical materials
However, Article 2, «Human Priority» of the Convention on Human
Rights and Biomedicine (1999), states that «Individuals’ interests and
welfare prevail over the interests of society or science». The right of a
person to provide disagreement is not violated by the legislative assertion
of the presumption of consent for transplantation, since anyone who does
not wish to become a donor in the future may indicate his reluctance to be
specied in a will or in another accessible manner.
The main arguments for the presumption of consent for transplantation
are: 1. Lack of need for organs for a deceased person. The traces of operations
under the clothes of the deceased will be invisible, but with cremation - are
absent. 2. The existence of a religious aspect. The religious obligation of
every Christian in some foreign countries to become posthumous donors.
Thanks to Catholicism, the Kingdom of Spain came out rst in the world in
the number of post-mortem donors. Catholics are loyal to organs transplant
from a deceased person, as well as engage in educational activities in this
area. In the Kingdom of Spain, an educational program from the church
began in the 1980-s - the church talked about the need to become post-
mortem donors, calling it the responsibility of every Christian. 3.
A sincere and unselsh desire to help others. 4. Existence of cases where
only transplantation can save human life. 5. The level of awareness and
awareness of people about transplantation needs to be improved. Often,
people do not think at all that they can die, and even more so what to do
then with their organs. Surveys show that most Ukrainian citizens do not
mind giving their body to another person in case of death, but the vast
majority of them do not agree to hand over organs to criminals. Therefore,
this provision should be xed legally in Article 16 of the Law of Ukraine
«On the Application of the Transplantation of Anatomical Materials to a
person» of the 17 of May, 2018. These arguments are clear and convincing,
therefore they do not require additional explanation and justication.
Consider the arguments against the presumption of consent for
transplantation:
1. Religious. In some religions (Judaism, Islam, Buddhism) prohibited
transplantation from the deceased donor. However, the sacred
books of these religions do not contain a direct prohibition on such
transplantation, since at the time of their writing about transplantation
was not discussed. One of the main tasks for each state is to ensure
prosperity and decent living conditions and to protect the lives of
its own citizens - we consider it expedient at the legislative level to
oblige religious communities to permit the transplantation of organs
and other anatomical materials, and in case of violation of the law, to
bring these religious communities to liability.
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2. Legal. Regarding possible violations of human rights during
transplantation, it can be noted that there are indeed certain risks
of such a fact, but saving thousands of lives is more important
than tolerating several possible violations. At the moment, when
permission for transplantation is not a widespread phenomenon,
there are even more dierent oenses and crimes in this area,
because when there is an urgent need for organ transplant, there is
also a donor, often in an illegal way. In order to prevent or at least
minimize such violations, it is advisable to introduce open access to
the list of transplant recipients and donor lists to prevent violations
of current transplant legislation.
The Law of Ukraine «On Amending Certain Legislative Acts of Ukraine
on the Application of the Transplantation of Human Anatomical Materials»
from the 28 of February, 2019 postponed the entry into force of the
provisions on the establishment of a donor register by the 1 of January,
2020 (Law of Ukraine № 2427-VIII, 2019).
In the current edition of Art. 16 of the Law of Ukraine «On the application
of transplantation of anatomical materials to a person» dated by the 17 of
May, 2018 reads as follows: «Every adult legal person can give written
consent or disagreement to become an donor of anatomical materials in case
of his death. In the absence of such an application, anatomical materials
in a deceased adult capable person may be taken with the consent of the
spouses or relatives living with her until death. Anatomical materials may
be taken with the consent of their legal representatives in deceased minors,
disabled or incapacitated persons».
An individual has the right to order the transfer of organs and other
anatomical materials of her body to scientic, medical or educational
institutions after her death.
In case of need for forensic examination, the anatomical materials of the
deceased donor are taken with permission and in the presence of a forensic
medical expert. The taking of anatomical materials should not compromise
the conduct of pre-trial investigation, and forensic medical expert must
inform the head of the local prosecutor’s oce within twenty-four hours.
The taking of anatomical materials from a deceased donor should not
result in distortion of his body. The taking of anatomical materials from a
deceased donor is made by an act. This act is signed by doctors who took
part in the taking of anatomical materials, and in the case of forensic medical
examination - and forensic medical expert, and attached to the medical
documents of the deceased person. The taking of anatomical materials
in a deceased person for transplantation and (or) for the manufacture
of bioimplants is not permitted in the event of a statement made by that
person during the lifetime of his disagreement as a donor.
466
Liliya Pороva, Svitlana Pороva, Hrуhorii Krainyk, Iryna Bandurka y Olena Fedosova
About the need to introduce a presumption of consent for organs transplantation and other
human anatomical materials
In the deceased adult legal person whose application for donation is
absent, as well as in minors, disabled and incapacitated persons, the taking
of anatomical materials is not allowed, if it is not received or impossible to
obtain the consent of the persons specied in part one of Article 16 of the
Law of Ukraine «On application transplantation of anatomical materials
to a person». The taking of anatomical materials in a deceased person is
also not allowed in the absence of a permit of a forensic expert in case of
necessity of forensic medical examination».
Despite the available human and scientic potential, the development of
clinical transplantology in Ukraine has slowed down in the last decade. The
revival of domestic transplantation is possible only due to a combination of
state policy, active work of public and charitable organizations, persistent
work of general practitioners and representatives of the Ministry of
Health of Ukraine. Therefore, the most important thing now is to create
a legislative foundation and provide an eective and ecient mechanism
for regulating and implementing transplants. Also, with a huge demand for
such operations, they are very few, and public funds are spent on treatment
of citizens abroad, although in Ukraine it would be much cheaper (Krainyk
and Sachuk, 2018: 700).
It is worth mentioning that in 1933 the Ukrainian surgeon Yuriy Voron
performed a successful kidney transplant of a deceased person. This
operation was the rst of its kind. However, today in Ukraine more than
5 thousand people are being treated for acute and chronic renal failure with
the help of an articial kidney device, and some of them are waiting for a
kidney transplant. Today, there are only ve transplant centers in Ukraine
that perform kidney, liver and heart transplants. Compared to Spain, there
are more than 40 transplant centers per 47 million population, and the
average number of transplants ranges from 98 to 115 transplants per year.
One of the problems of transplantology in Ukraine is the lack of donors,
both living and dead. Living potential donors rarely agree because they take
care of their own health, and for the dead, according to rough statistics,
there are about 3,000 people killed in road accidents in Ukraine each year,
as well as about a thousand dead each year in Operation United forces and
more than 1,000 suicides. In Ukraine, transplantation from a living family
donor predominates, and transplantation from a corpse donor has hardly
been practiced in recent years. Therefore, in recent years (2016 - 2020) no
more than ten kidney transplants were performed from a cadaveric donor.
And in countries with a well-developed transplant system, there are 14-39
cadaveric donors per 1 million population, while in Ukraine in 2016 it was
0.2 people per 1 million population.
Therefore, in Ukraine, in our opinion, it is necessary to create a single
state information system of transplantation, which will have a convenient
register of patients, and in which every citizen of the state will be able to
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consent or disagree to donate and thus save someone’s life. For this purpose,
Art. 14 of the Law of Ukraine “On the use of transplantation of anatomical
materials to humans.” This is very important because, according to clinical
studies, transplants from a living donor are safer for the recipient and take
root better.
Ukraine can also borrow the experience of a “donor card”, as in the
United States. The procedure for obtaining a “donor card” is usually carried
out when issuing a driver’s license, and in Ukraine it would be advisable
to carry out a similar procedure when a citizen receives a driver’s license
and at the time of conscription. Data on this are not registered, so in case
a person changes his decision, the “donor card” can simply be destroyed.
thus, it will help raise public awareness, give the right to choose and the
opportunity to save others.
Worldwide, transplantation of human organs and biological materials
is one of the most eective, and sometimes unalterable, ways to save
lives. Most irreversible damage to vital organs such as the kidneys, liver,
pancreas, lungs and heart cannot be cured other than by surgery. That
is why transplantology in the developed countries of the world is one of
the most dynamically developing areas, according to the Chairman of the
Parliamentary Committee on Health - Olga Bogomolets (Nikonenko, 2014).
The global growth rate of transplant operations predicts that in 20-30
years, 50-60% of all surgeries will involve transplantation of organs, tissues
and cells, in addition, will no longer transplant organs, but articially or
articially grown.
Up to 100,000 organ transplants and more than 200,000 human tissue
and cell transplants are performed annually worldwide. Today, there are
more than 1 million people with transplanted organs in the world, and their
number is constantly growing.
Today, there is no country on the planet where transplantation is banned.
According to the World Health Organization, it is held in 104 countries
around the world, which have the nancial, logistical and human resources.
Statistics show the eectiveness and popularity of transplantation as the
most eective treatment for irreversible diseases of the organs. Thus, about
26-28 thousand transplants are performed annually in the United States,
in the Kingdom of Spain - more than 4 thousand, in the Republic of Poland
- more than 1.5 thousand. In Estonia, this gure is 46.2 transplants per 1
million population, in Latvia - 36.2, in Lithuania - 22.
The situation in Ukraine can be called catastrophic, even compared
to its neighbors. According to the statistics of 2018, we perform only 3.1
transplants per 1 million population per year. And this is one of the worst
indicators in the world (Bogomolets, 2018).
468
Liliya Pороva, Svitlana Pороva, Hrуhorii Krainyk, Iryna Bandurka y Olena Fedosova
About the need to introduce a presumption of consent for organs transplantation and other
human anatomical materials
In absolute numbers, this is only 130 operations per year, despite the
fact that more than 5,000 Ukrainians need organ transplants every year.
Of these, more than 2,500 patients need kidney transplants, up to 1,500
patients need liver transplants, more than 1,000 patients need heart
transplants, and 300 people need bone marrow transplants.
The number of people in need of surgery is growing steadily, and
most of them die without waiting for a transplant. Of the 5,000 people in
need of a transplant, about 3,400 die each year. O. Shklyarska (2017:15)
quotes: “Every day in Ukraine, nine people die without waiting for a
transplant.” Those who are lucky are sent abroad by the state, spending
millions of hryvnias to pay for the services of foreign doctors. With the
funds that Ukraine transferred to foreign clinics for the treatment of our
citizens in 2013-2015 ($ 2.431 million and 612.2 thousand euros), 6 bone
marrow transplants, 8 heart transplants, 5 liver transplants and 18 kidney
transplants were performed. With a well-established transplant system in
Ukraine, 1122 heart transplants could be performed with these funds, 116 -
liver and 5623 – kidney (Shklyarska, 2017).
A few words need to be said about the norm of the following content,
which is enshrined in Part 5 of Art. 13 of the Law of 17.05.2018: “If the
recipient is in an urgent condition, which is a direct and imminent threat
to his life, medical care with the use of transplantation is provided without
the consent of the recipient, his parents or other legal representatives.”
According to A. Gel, the norm is as follows: rst, it restricts the personal
non-property rights of the recipient and his parents (legal representatives)
in terms of the right to consent to medical intervention, and secondly,
directly contradict the requirements set by the legislator in Part 2 of Art. 43
Fundamentals of the legislation of Ukraine on health care (1992) (Consent
to medical intervention). We quote this rule:
The consent of the patient or his legal representative to medical intervention
is not required only in the presence of signs of direct threat to the patient’s life,
provided that it is impossible for objective reasons to obtain consent for such
intervention from the patient or his legal representatives (Fundamentals of the
legislation of Ukraine on health care, 1992: n/p)
Thus, the legislator explicitly determines that the implementation of
medical intervention without the consent of the relevant entity is possible
only if there are two necessary conditions: a) the presence of a direct threat
to the patient’s life; b) the lack of objective reasons to obtain such consent.
We share the opinion of A. Gel that this is exactly the wording that the
legislator should have used in constructing the norm enshrined in Part 5
of Art. 13 of the Law of 17.05.2018. At the same time, the norms of special
medical legislation do not look very correct, which directly contradict the
requirements of the Fundamentals of Legislation of Ukraine on Health Care
- the basic legislative act that denes legal, organizational, economic and
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social principles of health care in Ukraine, and is essentially nothing more
than a “constitution of a medical worker” (Gel. 2018: n/p).
Such an edition of the article requires urgent changes, since it does not
solve the issue of saving the lives of Ukrainian citizens due to the lack of
donor agencies’ contributions from corps donors.
Other issues that require urgent resolution are the creation of the
Uniform Register of Donors and Recipients, the preparation of sub-
normative acts on transplantation etc.
Conclusions
1. The necessity of making amendments to the legislation of Ukraine
regarding the introduction of the presumption of consent for
transplantation of organs and other human anatomical materials of
a person and the feasibility of practical application of these changes,
namely, signicant improvement and elimination of problems in the
transplantation sphere, is grounded, one of the main is the absence
of presumption of consent for transplantation in the legislation of
Ukraine and signicant underfunding of the medical sector, low
awareness and «transplantation» of illiteracy of citizens.
2. Given that one of the major opponents of transplantation is the
church that aects the consciousness of not only ordinary citizens
of Ukraine, but also of state authorities of Ukraine, one must ask the
following question: either some churches (the Ukrainian Orthodox
Church (which is essentially a part of the Russian Orthodox Church
churches of the Moscow Patriarchate), Jehovah›s Witnesses, etc.)
change in Ukraine their unconstitutional position on the prohibition
of transplantation or presumption of consent for transplantation,
or they are legally liable in the territory of Ukraine as such anti-
constitutional activity and destructively aect the consciousness of
Ukrainian citizens.
3. Article 16 of the Law of Ukraine «On the Application of the
Transplantation of Anatomical Materials to a person» from the 17
of May 2018, is proposed to be worded as follows: «Every adult
legal person may give written consent or disagreement to become
an donor of anatomical materials in case of his death. In the absence
of a statement of disagreement with the transplant, consent from
relatives or others is not required. In this case, deceased persons are
deemed to have given consent to the transplantation of anatomical
materials».
470
Liliya Pороva, Svitlana Pороva, Hrуhorii Krainyk, Iryna Bandurka y Olena Fedosova
About the need to introduce a presumption of consent for organs transplantation and other
human anatomical materials
4. In Ukraine, in our opinion, it is necessary to create a single state
information system for transplantation, which will have a convenient
register of patients, and in which every citizen of the state will be
able to give their consent or disagreement to donate and thus save
someone’s life. For this purpose, Art. 14 of the Law of Ukraine “ On
the Application of Transplantation of Anatomical Materials to a
person”.
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Esta revista fue editada en formato digital y publicada
en diciembre de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 71
