Цивилистические основания донорства

Abstract

The authors reveal in the article the nature, the main idea of donor legal relations, legal relations in the sphere of transplantation of donor organs and tissues, pointing out the problems that have objectively developed in our legal order. In fact, transactions in the sphere of donation and transplantation exist, but there is no proper legal regulation of the emerging legal relations. The authors adhere to the position that a person has the right to dispose of his body provided that such disposal does not entail the donor’s death or disability, and has the right to a commensurate compensation, acting not as a payment, but as a compensation for the harm to health, which was or could be a consequence of entering into donor legal relations. The necessity of terminological unity of normative-legal regulation of these relations is shown. The main purpose of the work is to reveal the private legal nature of donation, donor legal relations and legal relations in the field of transplantation. An attempt is made to describe the system of transactions in donation, proper ways of defence, problems of correlation of tort and contractual claims in relation to donation are discussed. Foreign experience is touched upon, showing the uncertain steps of different legal orders towards a freer regulation of this sphere of social relations. Political-economic and moral reasoning on the necessity of transferring donation relations from the sphere of public law to private law, as well as from state regulation to free market is given. Attention is emphasised on a number of contradictions that require resolution in doctrine, legislation and judicial practice.