Abstract

Allocation of Organs in the International Compound System — Limits of the Acceptability of Self–regulatory Organisational Structures in the Transplantation Business

The allocation of human organs is based on a dense network of cooperation schemes and diversified decision making processes. The concept of controlled self-regulation serves as dogmatic template. This concept tries to legitimise the involvement of numerous decision makers in the process of allocating organs. First and foremost, it is the involvement of Eurotransplant in the process of allocating organs that faces insurmountable obstacles from the point of view of institutional law. Assigning the decision on the allocation of human organs to a foundation subject to Dutch legislation is a practice devoid of any sufficient democratic basis of legitimation. Moreover, the content-related determinants of the decision on the allocation of human organs are not sufficiently predetermined by democratically legitimised decision makers, either. In particular, the legislative authority has not only missed out on influencing the commissioning of Eurotransplant as an agency according to § 12 TPG, there is also a lack of sufficient options of legal protection in the field of transplant medicine. Similar shortcomings can also be seen in the fact that the legal determination of the parameters of allocation is limited to only two criteria: prospect of success and urgency. Urgency aims at saving as many lives as possible. But this is not reconcilable with the aim of using the available organs most efficiently. Therefore the legislative authority is not only called upon to codify a valid foundation for the participation of Eurotransplant in the process of allocating organs, but also, first and foremost, to formulate the substantial determinants of the allocation of human organs.