The Concept of a Donor under the Act of 1 July 2005 on the Procurement, Storage and Transplantation of Cells, Tissues and Organs: Remarks De Lege Lata and De Lege Ferenda

Abstract

This article is of a scientific and research character and focuses on concepts related to the subjective aspect of donation, as employed by the Polish legislator in the Act on the Procurement, Storage and Transplantation of Cells, Tissues and Organs, as well as in the relevant legal instruments of the European Union, namely a regulation and directives. The key concepts of “donor” and “living donor” are legally defined, whereas a number of other concepts, equally significant to the transplantation process, are not explained in any of the legal acts analysed. Nonetheless, legislators frequently employ terms such as “bone marrow donor”, “organ donor”, “potential donor”, and “donor candidate”, as well as the titles “Transplant Donor” and “Distinguished Transplant Donor”. The purpose of this paper is therefore to examine these terms and attempt to determine their meaning. It is argued that the multiplicity of terms relating to the subjective aspect of donation and its various stages, as well as the multiplicity of their legal definitions, prevents a clear determination of their meaning and of the precise relationship between them. The problems associated with interpreting the concept of a donor and related terms are not merely theoretical. They are of considerable practical significance, as the different stages of the transplantation procedure entail distinct rights and obligations for healthcare providers, medical professionals, donors themselves, potential donors, and donor candidates. Given that this issue has rarely been the subject of in-depth scholarly analysis, it is anticipated that research in this area, and the dissemination of its findings, may contribute to the development of new legislative solutions.