兒童器官移植法制之探討

本論文係討論兒童病患自主決定權，主要聚焦於探討兒童器官移植之自主決定權之議題。透過對外國法文獻，與日本器官移植法制之研究，繼而與我國現行法相互比較。從兒童病患自主決定權開始，藉由兒童最佳利益與兒童表達意見權之規定，進一步建立器官移植中兒童自主權之規範。兒童，於傳統法學概念下，普遍被認為是思慮不周，應給予保護之人，直到1987年聯合國「兒童權利公約」之後，方才確立兒童作為權利主體，與成人享有同等人權與人性尊嚴，讓兒童由保護客體，轉變為權利主體之地位。兒童作為權利主體，父母與子女間應以「兒童最佳利益」為核心相互合作。對於兒童相關規範，應基於兒童最佳利益，做出符合兒童利益之最佳選擇。於器官移植時，器官捐贈者所為之器官捐贈行為，是基於純粹利他且無益於自身之行為，故而更應注重器官捐贈者之告知後同意與自主決定。惟當兒童作為權利主體時，是否應允許兒童為器官捐贈此一利他且自傷之行為，即生爭論。因而，在討論兒童之器官捐贈時，尤應注重兒童權利與器官捐贈正當性與理念衝突之問題。我國器官移植法制與醫療技術發展甚早，無論是首例器官移植手術或人體器官移植條例之制定皆為亞洲之冠。儘管器官移植相關制度在經歷數次修正後，器官來源不足之情況有所改善，器官等待者與器官捐贈數存在之巨大落差卻仍在我國實務上造成困擾，遑論捐贈數更為稀缺的兒童器官移植領域。在器官移植中，兒童是否得以表達捐贈、受贈之同意，訴諸於父母之意願。惟器官移植涉及身體與生命，應為個人自主權之核心，兒童作為受保護之人同時也是權利主體，在器官移植部分仍應基於兒童最佳利益與表達意見之權利，尊重兒童自身所作出之醫療決定。就此，日本法中允許15歲以上之兒童，可以遺囑做出捐贈同意，並在父母做出之決定，違反捐贈/受贈兒童之最佳利益時，得由法院介入保護。關於未成年人之保護部分，值得我國借鏡。

關鍵字

兒童；病患自主決定權；兒童最佳利益；器官移植；日本器官移植法；人體器官移植條例

並列摘要

This thesis focuses on children's medical autonomy, especially the right to self-determination in organ transplantation. It is written by means of literature research and comparative analysis, starting from children's medical autonomy and further establishing the regulation of children's autonomy in organ transplantation through the provisions of children's best interests and children's right to express their opinions. Under traditional legal concepts, children are generally considered to be inadvertent and need to be protected. However, after the United Nations Convention on the Rights of the Child (CRC) in 1987, it was established that children are the subjects of rights and enjoy the same human rights and dignity as adults, which changed the status of children from objects of protection to subjects of rights. As subjects of rights, parents and children should cooperate with each other with the "best interests of the child" as the core, and make the best choice for children based on the best interests of the child. In the case of organ transplantation, organ donation is a purely altruistic and selfless act, and the informed consent and autonomous decision of the organ donor should be emphasized. However, since it is generally believed that the act of organ donation cannot benefit the person who donated the organ, there is a debate on whether children should be allowed to provide organs as an altruistic and self-injurious act under the concept of children as the subject of rights. Therefore, when discussing children organ donors, the rights of the children, the legitimacy of organ provision, and the conflict of ideas should be emphasized. The organ transplant law and the medical technology related to organ transplant in Taiwan were developed early. The first organ transplantation surgery and human organ transplant regulations are the first among the best in Asia. In practice, however, Taiwan suffers from a lack of organ sources. After several amendments and relaxation donation conditions, the organ transplantation system in TAIWAN has been gradually improved. Nevertheless, children's consent to donate and receive organs are still subject to their parents' will. Organ transplantation involves the body and life, and should be the core of personal autonomy. As children are protected entities and a subject of rights, the medical decision should be based on children’s best interests and the right to express their opinions. In this regard, Japanese law allows children over the age of 15 to give their consent to donate by will, and the court may intervene to protect the decision made by the parents if it is against the best interests of the donor/recipient child. The protection of minors is worthy of reference in our country.