The purpose of this paper is to explore the characteristics, nature and changes of organ (or remains) donation agreement. I. Characteristics and nature of organ (or remains) donation agreement An organ (or remains) donation agreement refers to an agreement signed by a donor who expresses his willingness to donate his body organs or remains to relevant medical units to help patients who need organ transplant surgery. In nature, the act of donating one's body organs or remains is an act of exercising one's body rights and controlling one's body, which is an obvious civil act. Therefore, the organ or remains donation agreement signed between the donor and the relevant units for donating his own body organs or remains is a civil agreement. However, compared with the general civil agreement, this kind of agreement has some special aspects, which are embodied in the following three aspects: (1) Organ (or remains) donation agreement has strong ethics and morality, which is an important feature that distinguishes organ (or remains) donation agreement from the general civil agreement. Usually, the object of donation agreement is what the donor has the right to dispose of, while the organ (or remains) donation agreement is different. Its object is not a thing, but a human organ or a human remains with personality. According to the traditional theory of civil law, human organs (including remains [2]) are not legal things, because legal things are first impersonal, while the personality right law stipulates that human organs (including remains [3]) are the embodiment of personality interests and the object of personality rights. [4] In other words, human organs and remains are entities containing personal dignity, and the principle of property law does not apply to human domination of their organs and remains. In this way, organ (or remains) donation agreements targeting human organs are bound to have strong ethics for both donors and recipients, and this ethics is more constrained than the law. ?
First of all, from the donor's point of view, donors have a moral obligation to donate their own body organs or remains to help others, provided that organ transplantation will not cause any harm to their health, and their body organs or remains are suitable for transplantation to organ transplant recipients. However, this obligation is only a moral obligation, not mandatory or statutory. Even if the donor has signed an organ (or remains) donation agreement, he is not obliged to fulfill such an agreement. ? Secondly, from the recipient's point of view, the recipient, as a medical unit, is not the beneficiary of organ donation or body donation, but because it is a unit that has mastered organ transplantation technology and conditions for organ transplantation operation, and specifically accepts the donated organs or bodies, it has the ethical obligation to accept the organs or bodies donated voluntarily by donors. In other words, the donee (that is, the relevant medical unit) has the obligation to accept his own body organs or remains donated voluntarily, unless there are circumstances that should not be accepted by law or medical standards. However, this acceptance obligation does not come from legal provisions, but from the relief obligation imposed on medical units by traditional medical ethics. [1] This is because, according to the relevant provisions of China's civil law, the donee only accepts the rights of the donee but not the obligations of the donee. Therefore, according to the organ (or remains) donation agreement, medical units have no legal obligation to accept donated organs (or remains), and their acceptance of donated organs (or remains) does not come from legal provisions. On the other hand, medical units have the medical ethical obligation to heal the wounded and rescue the dying. When they have mastered organ transplantation technology and can save lives through this technology, rejecting organs or remains donated by organ or remains donors is actually ignoring the lives of patients with organ dysfunction, failure or pathological changes, which is unreasonable for the medical industry they are engaged in. Therefore, from the perspective of medical ethics, medical units are obliged to accept organs or remains donated by donors. ? (2) Is the organ (or remains) donation agreement free? Traditional medical ethics not only endows organ or remains donors with the ethical obligation to donate their body organs or remains, but also endows this ethical obligation with free. According to traditional medical ethics, the behavior of donors donating organs or remains is a noble moral behavior, which is characterized by not requiring economic returns or material compensation. The donation of organs or remains required by traditional medical ethics is free, which determines that the donation agreement of organs (or remains) must also be free. Usually, donors donate their body organs or remains to treat patients, not to seek economic benefits; As recipients, medical units accept organs or remains only for organ transplantation to save patients, not for sale. Traditional medical ethics denies the commercialization of human organs and opposes the sale of human organs. Modern civil law theory also recognizes traditional medical ethics and holds a negative attitude towards the sale of human organs. Therefore, according to the theory of modern civil law, the sale of human organs as a form of paid donation of organs or remains should be prohibited according to law. This actually deprives the organ (or remains) donation agreement of the statutory conditions, so that the organ (or remains) donation agreement can only appear in a free form in a modern society ruled by law and become an authentic free civil agreement. ? (3) The organ (or remains) donation agreement can be revoked. In addition to the above two points, the organ (or remains) donation agreement is also revocable. The revocability of organ (or remains) donation agreement is mainly determined by the following three points: first, donors enjoy the rights to life, health and body according to law. Therefore, he has the right to refuse to engage in any risky activities, because these risky activities may lead to his death or damage his health, or damage his physical integrity. Organ transplantation is a high-risk medical behavior, and the uncertainty of medical risks makes it possible for medical units to violate the donor's right to life and health or physical rights at any time in the process of extracting donated organs from donors for transplantation according to organ donation agreements. However, in the case that medical ethics does not allow organ or remains donors to donate organs with compensation, as donors who are purely dedicated to organ transplantation, their legitimate rights and interests should naturally be strictly protected. Therefore, it is objectively necessary to give donors the right to cancel the organ (or remains) donation agreement they signed at any time, which is also the need to maintain social equity. Secondly, the revocability of organ (or remains) donation agreement is also obviously related to the ethics of the agreement. As mentioned above, organ or remains donors have no legal obligation to donate their own body organs or remains in accordance with the donation agreement. Therefore, legally speaking, even if a donor signs an organ (or remains) donation agreement, it does not bear the absolute obligation to donate his own organs or remains. Whether to donate organs or remains depends on his ethical obligations according to medical ethics. Accordingly, even if the donor cancels the organ (or remains) donation agreement signed with the relevant medical unit, it does not constitute a violation of his legal obligations, but only a violation of his ethical obligations.
Thirdly, the organ (or remains) donation agreement is not a donation contract, it is just an agreement. We know that an agreement is different from a contract. "The agreement may be just a letter of intent and does not involve the specific rights and obligations of both parties." (2) Organ (or remains) donation agreement, as an agreement, only has the function of indicating that the donor wishes to donate organs or remains. It usually does not involve the specific rights and obligations between the donor and the recipient as both parties to the agreement. Therefore, the donor has no obligation to donate his organs or remains absolutely according to the donation agreement, and the donee has no right to ask the donor to fulfill the donation agreement according to the donation agreement. In this case, the organ (or remains) donation agreement can obviously be revoked by the donor. ? To sum up, the author thinks that organ (or remains) donation agreement is a special civil agreement. This kind of agreement is different from the general civil agreement and gift contract. It is moral, free and revocable. For this agreement, the current General Principles of Civil Law does not have an appropriate mechanism to regulate it, and the provisions on the gift contract in the Contract Law are not fully applicable. Therefore, the author thinks that this kind of agreement should be regulated by special legislation. This is not only the inherent need of the nature of the agreement, but also the objective requirement of governing the country according to law.