Civil Liability Arising from the Disposal of Human Organs
Keywords:
(Civil liability, robotic devices, Iraqi legislation, technological advancements, artificial intelligence, modern laws, legal risks).Abstract
The disposal of human organs is a complex legal issue that raises widespread controversy due to its intersection between medical advancements and the legal protection of individuals. With the increasing need for organ transplantation, a legal dilemma has emerged regarding balancing the facilitation of donation processes with the prohibition of illicit organ trade. This study is significant as it analyzes the legal frameworks governing this issue, particularly given the diverse legislative approaches adopted by different countries. At the legislative level, Iraq’s Law No. 11 of 2016 and Egypt’s Law No. 5 of 2010 explicitly prohibit organ trafficking while establishing strict conditions for transplantation. These conditions include ensuring that donations are voluntary, free of charge, and subject to medical supervision. This study analyzes the legal basis of civil liability arising from human organ transactions by comparing different legislative approaches. It focuses on assessing the effectiveness of these laws in preventing illegal trade, protecting donors and recipients, and achieving a balance between medical advancements and legal justice.
References
Sources and References
First/ Books:
1. Al-Jumaili, Asaad, Errors in Civil Medical Liability, A Comparative Study, Dar Al-Thaqafa Publishing House.
2. Al-Sarraj, Karima, (2006), Human Organ Transplantation Operations, Dar Al-Nahda Al-Arabiya, Cairo.
3. Al-Shahawi, Adel; Al-Shahawi, Muhammad, (2012), Explanation of Law No. 5 of 2010 Regulating Human Organ Transplantation, First Edition, Dar Al-Nahda Al-Arabiya, Cairo.
4. Jamal, Raed, (2018), "Medical Liability in Light of Organ Transplantation Operations: Jurisprudence and Judiciary," 3rd ed., Dar Al-Ulum Al-Qanuniyah, Riyadh, Kingdom of Saudi Arabia.
5. Hassan, Nizar, (2017), "Doctoral Errors and Civil Liability in Organ Transplantation Operations," 2nd ed., Dar Al-Fikr Al-Jami'i, Cairo, Egypt.
6. Rashid, Tayseer, (2019), "Legal Liability in the Field of Human Organ Transplantation: A Comparative Study between Arab and International Laws", 2nd ed., Dar Al-Maaref Al-Qanuniyah, Algeria.
7. Shabl, Jaber, (2000), Human Organ Transplantation between Medicine, Sharia, and Law, Bayt Al-Hikma, Baghdad.
8. Ayed, Samira, (2004), Human Organ Transplantation and Transplantation Operations between Law and Sharia, 1st ed., Al-Halabi Legal Publications, Beirut.
9. Muhammad, Fayez, (2014), Human Rights and Combating Human Trafficking Crimes: A Study in Comparative Law, Dar Al-Matbouat Al-Jami'iyah, Alexandria.
10. Moawad, Nadia, (2017), "Civil Liability in Organ Transplantation: A Study in the Framework of International and Arab Laws", 4th ed., Al-Halabi Legal Publications, Beirut, Lebanon.
11. Mansour, Muhammad, (2011), Medical Liability, Dar Al-Jami'a Al-Jadida, Egypt.
12. Fouad, Mustafa, (2016), "Civil Liability of Physicians and Medical Institutions: A Jurisprudential and Judicial Study," 4th ed., Dar Al-Fikr Al-Arabi, Cairo, Egypt.
Second/ Legal Research:
1. Al-Qaisi, Fawzi, (2018), "Errors of Medical Institutions in Organ Transplantation: A Study of Civil Liability," Journal of Human Rights, Issue 12, Amman, Jordan.
2. Al-Ludaimi, Tamam, (2005), "Guarantee of Damage in the Work of a Physician in the Balance of Sharia," Journal of Sharia and Law, published by the College of Sharia and Law, United Arab Emirates University, 19th Year, 24th Issue.
3. Hamoud, Muhammad, (2006), "Medical Liability of Public Healthcare Facilities," a study published in Journal of Law, 30th Year, Issue 1.
4. Darwish, Karim, (2023), "The Legal Framework for Organ Transplantation in Egyptian Law: Problems and Responsibilities," Journal of Legal and Comparative Studies, Issue 22, Cairo, Egypt.
5. Shanawa, Hadeer, (2014), "The Liability of Organ Transplant Centers in Human Organ Disposal Operations," a paper submitted to the Journal of the Letter of Law, University of Karbala - College of Law, Year 6, Issue 2, Iraq.
6. Salah, Youssef, (2020), "Cases of Medical Liability in Human Organ Transplantation Operations: An Analytical Study," Journal of Legal Studies, Issue 15, Damascus, Syria.
Third/ Theses and Dissertations:
1. Ibrahim, Hamdi, (2017), "The Impact of Physicians' Negligence in Organ Transplantation Operations on the Legal Liability of Medical Institutions," Master's Thesis, Alexandria University, Faculty of Law, Alexandria, Egypt.
2. Boutouil, Rokia, (2015-2016), Criminal Liability for the Transplantation of Human Organs in Algerian Legislation, Master's Thesis, Mohamed Khider University of Biskra, Faculty of Law and Political Science.
3. Sami, Abdel Karim, (2019), "Medical Institutions' Violation of Legal Rules in Human Organ Transplantation Operations: An Applied Study," PhD Thesis, Cairo University, Faculty of Law, Cairo, Egypt.
4. Saeed, Fatima, (2021), "The Balance between Human Rights and Legal Liability in Organ Transplantation Operations: A Study in Comparative Jurisprudence," Master's Thesis, Beirut Arab University, Beirut, Lebanon.
5. Abdel Daim, Ahmed, (1995), Human Body Organs within Legal Transactions, PhD Thesis submitted to the Faculty of Political Science and Economics, Robert Schuman University of Strasbourg, Al-Halabi Legal Publications, Beirut.
6. Nader, Hussein, (2019), “Civil Liability Resulting from Doctors’ Errors in Organ Transplantation Operations: A Study in Arab Medical Law”, PhD Thesis, Damascus University, Faculty of Law, Damascus, Syria.
Fourth/ Foreign Judicial Decisions:
1. Court of Cassation, Civil Chamber, Decision No. 112233 of November 18, 2020, published in the Revue de Jurisprudence Médicale, France, 2020 year.
2. Court of Appeal, Civil Division, Decision No. 44556 of 25 February 2021, published in Medical Law Journal, United Kingdom, year 2021.
3. Cassation session, civil chamber, decision no. 98765 on September 12, 2021, published in the Droit Medical Revue, France, June 2024.
4. Cassation session, civil chamber, decision no. 98765 on September 12, 2021, published in the Droit Medical Revue, France, April 2021.
5. Cassation session, civil chamber, date no. 12345 on March 10, 2023, published in Jurisprudence Medical, France, June 2023.
6. Court of Appeal, Civil Division, decision no. 67890 of 15 June 2022, published in Medical Law Review, United Kingdom, year 2022.
Fifth/ Foreign references:
1. Mason, J.K., & Laurie, G.T., (2011), Mason and McCall Smith's Law and Medical Ethics, 8th edition, Oxford University Press, United Kingdom,.
2. Isabelle, Moine, (1997), Les choses hors commerce: approche de la personne humaine juridique, 1ère edition, Librairie générale de droit et de jurisprudence, France.