人體器官移植之法律與政策

當等待捐贈的名單越來越長，成為每個社會醫療的龐大支出和必須面對的問題時，許多相應的法律制度和政策紛紛出現，用來提高器官捐贈的比率。其中所涉及的問題不容忽視，而對於現存的法令制度亦有待檢討。就法律的解釋面向，過去在器官移植領域所遵從的腦死標準，漸漸轉變到心臟死的討論。心臟死固然是死亡概念下最自然不過的判準，但是在移植的範疇下卻出現疑慮，並且有待更細緻化的規範。而一向被視為鐵律的死後捐贈原則，似乎也隨著時代需求，變得不再重要。除了將死亡定義之解釋擴大，捐贈者的同意權也是一個著手的目標。傳統上知情同意是被認為較符合自主權的作法，但是隨著教育的推廣和大眾觀念的改變，許多人是有意願成為捐贈者的，而採用推定同意的作法可以大幅提升捐贈率。最能避免爭議的作法或許是強制選擇，但是實行之難度也有待討論。另外，個人的意願雖然重要，但是家屬的參與也是必然的，如何在每個制度中兼顧兩者的利益甚為關鍵。除了屍體捐贈的鬆綁，活體捐贈也受到關切，認為應該給予更少的限制。以往為了杜絕器官交易，及保護捐贈者的健康利益，將活體捐贈限於一定親等間。不過基於深厚情感基礎的捐贈亦應該被容許，且親屬間是否會造成不當的壓力也容有疑問。為了能提高捐贈的機會和效率，法律也開放各種新型態的配對模式，期待嘉惠更多受贈者。在器官捐贈的議題下，有償的金錢介入一直是禁忌，但是捐贈者因為移植手術所受的各類損失，應具有受補償的正當性。補償的手段和額度也是討論的核心，該如何有效地達到補助的目的，卻不會構成經濟性的誘因導致買賣的質疑，是一個挑戰。以上的四大議題，參照其他國家的法律政策，期望提供台灣修法的參考。

關鍵字

心臟死；死後捐贈原則；表態同意；表態退出；活體捐贈；器捐補償

並列摘要

As the waiting list continues to grow, the demand for organ supply increases. The shortage of organs has brought heavy burden to medical expenses in every society, and has become a serious problem. Therefore, many laws and policies are carried out as solutions to boost the donation rate. Concerns derive from these regulations and methods to enhance the supply of organ, and there are still room for improvement and debate in the current system. In terms of legal interpretation, brain death used to be the common standard in the field of organ transplantation, yet the discussion of cardiac death has gained attention recently. Cardiac death, without doubt, is the most natural and straightforward understanding of the concept of death, but under the topic of organ transplantation, suspicions and worries appear. Hence, the need for detailed and complete guidelines is inevitable. Moreover, the authoritative dead donor rule seems to face its challenge and become less important in the modern world. Besides the expansion the definition of death in law, donor’s consent is also a target to increase organs. Traditionally, informed consent（opt-in system）is considered to correspond to one’s autonomy, yet as the promotion of education becomes prevalent leading to the change of public’s attitude towards organ donation, many actually are willing to become donors. However, due to some reasons, they may not take actions to obtain the donor card. In this case, the implement of presumed consent（opt-out system）can help lift organ donation rate, without violating one’s autonomy. Perhaps, the best system is mandated choice, ensuring everyone’s wish is recorded, nonetheless the operation of such system can have difficulties. In addition, though one’s autonomy should be respected, families’ participation cannot be neglected. Reaching balance for both sides is crucial. In addition to the movement in corpse donation, living donation has gained attention too, hoping to remove some of the present restrictions. For the purpose of banning organ sales and protecting donors’ interests and health, living donation is limited to donations between certain relatives. Nevertheless, donors who share deep emotional connection with the recipients should be allowed to donate as well. Also, whether donation among certain relatives will bring undue pressure to the donor is a question. In order to benefit more patients and achieve efficiency, new models of pairing have been created, and are legalized in law. When it comes to organ donation, the involvement of monetary payment has always been a taboo, but donors’ loss due to the transplantation surgery should have the ground to be compensated. The means of compensation and its level are open to debate. How such compensation can function properly without turning into an economic incentive is a challenge. In the hope of offering references to Taiwan’s laws and policies, the four topics mentioned above are researched and compared with other nations’ laws and policies.