The Missing Pieces: Living Organ Donation and Personal Autonomy in Germany

by | Apr 13, 2023

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About Philine Dellbrügge

Philine Dellbrügge is a law student at the Martin-Luther-University in Halle-Wittenberg and has worked at the Max-Planck-Institute for Social Anthropology in the Law & Anthropology department as a student assistant since November 2020. She has also provided research support to the Research Group 'Law and Regulation of Organ Donation and Transplantation' led by the Minerva Fellow Dr Farrah Raza since 2020.

Non-directed living organ donation remains prohibited in Germany, with concerning implications for individual autonomy as well as potentially fatal consequences for those awaiting organ donation. About 8,500 people are currently on the waiting list for a donor organ in Germany, while there are only around 930 post-mortem organ donors nationwide each year. Moreover, the number of organs donated post-mortem is stagnating at a low level. The reasons for this include the loss of confidence resulting from the organ donation scandals of 2012/2013 and insufficient identification of potential donors in the removal hospitals. Meanwhile, the demand for donor organs is constantly growing. For example, the prevalence of liver disease has increased, with the most common liver disease being alcoholic and non-alcoholic fatty liver disease caused by excess alcohol, obesity or diabetes mellitus, among others (these are the main diagnoses associated with indicated liver transplantations). Consequently, the increasing number of registrations for an organ transplantation and the low number of organ donors results in daily deaths on the waiting list. This blog outlines the legal restrictions governing living organ donation and argues that the ban on non-directed living organ donation raises concerns about a potential donor’s right to self-determination.

The legal framework in Germany

According to Section 8 I 2 of the Transplantation Act (TPG), living organ donation is only permissible for the purpose of transfer to first- or second-degree relatives, spouses, registered partners, fiancées or other persons who are obviously close to the donor in a special personal relationship. The law prohibits the following acts: undirected (anonymous) living donations, pool or ring models and, depending on whether one assumes a “close personal relationship” between the donor-recipient pairs due to a shared fate based on a common emergency, cross-over living donation (section 19 II TPG).

Living donation is based on the fundamental principle of the person’s self-determination over one’s body (Art 2 I in conjunction with 1 I of the Basic Law (GG)) on the part of the potential organ donor, as well as the right to life and physical integrity secured by Art 2 II 1 GG on the part of the potential organ recipient, so that a restriction of the circle of donors constitutes an infringement of the scope of protection of the fundamental rights. Accordingly, it is not the demand to expand the circle of donors that requires justification, but rather the existing restriction of this.

Concerns about voluntariness and organ trafficking

The aim of Section 8 I 1 TPG was to ensure the protection of the voluntary nature of donation and to prevent organ trafficking. However, it is not clear that limiting the pool of living donors to only those with close personal ties to the recipient ensures the voluntary nature of the decision. Rather, the current framework risks the danger of the possibility of an involuntary donation that results from social expectations and a “strong incentive character” where exerting pressure is easier because of personal proximity and perceived moral obligations. This societal force lacks the same power in the case of anonymous living organ donation. Ensuring voluntariness should instead be the task of living donation commissions.

Furthermore, it is not plausible that the risk of organ trafficking should be higher in case of anonymous living organ donation than in case of living donations based on a proximity relationship. The concern about covert allocation activities is unfounded insofar as the distribution of anonymously donated organs, similar to post-mortem donation, would presumably take place via the competent allocation body (Eurotransplant) within the meaning of Section 12 TPG. The Federal Constitutional Court (1 BVR 2181/98) confirmed that in this case the danger of organ trafficking is practically excluded and the voluntary nature of the donor’s decision is ensured. Insofar as it is unclear to what extent this would increase living donation, this does not constitute an argument for prohibiting it under threat of punishment.

Conclusion: moving beyond undue restrictions on personal autonomy

In view of the unsuitability of the measure to achieve the legitimate purposes and the consequent lack of compliance with the constitutional requirements for a justified intervention, a reformulation of Section 8 I 2 TPG is advisable. This could be achieved by expanding the circle of donors to include pool models, cross-over and anonymous living donation, whereby the dangers of autonomy-violating instrumentalisation and commercialisation can be prevented by procedural safeguards.

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