Akademik Veri Yönetim Sistemi
II International MEdical Law Congress, Antalya, Türkiye, 21 - 23 Eylül 2017, cilt.2, sa.2351, ss.205-214
The main consideration of this paper is to analyse the European Court of Human Rights (ECtHR) approach to tissue and organ donation. As is known, organ donation and transplantation is a fundamental concept in health care that necessitates the obtainment of consent, and is a delicate subject that requires the protection of individuals’ rights, in particular, personal autonomy, integrity and dignity. On that account, in this paper, the human rights’ issues concerning tissue and organ donation will be discussed and this discussion will be held by specifically focusing on the case of Elberte v Latvia (hereinafter ‘the Elberte case’).
The Elberte case deals with the legal approach to human body parts assessing the privacy of the individual in terms of not just himself but also his close relatives. It will be argued that the Elberte case is a new direction in consent for organ donation, in particular, the use of tissue, since it considers the importance of consent and requires that the closest relative be given a right to consent under specific circumstances.
This leads to two important issues which will be taken into consideration in this paper: (i) the importance of consent to organ donation within the context of the rights protected under the Convention, in particular, prohibition of torture (Article 3) and the right to respect for private and family life (Article 8); and (ii) the importance of the clarity and foreseeability of legal provisions of the Member States on organ donation.