A «Tacit Consent» to Transplantation: to be оr Not to be

Abstract

Regulatory collisions and lacunae in the legal regulation of transplantation are highlighted. The analysis was carried out and improvement of normative acts in the outlined area was proposed. The possibility of implementing the principle of tacit consent to transplantation was investigated. The practice of the European Court of Human Rights in the field of application of transplantation is analyzed. The principle of tacit consent provides for the possibility of using any biological materials from the body of a deceased person, if the latter did not testify to their disagreement during their lifetime or the relatives of the deceased person did not make any statements regarding the prohibition of removing organs and tissues from the body of the deceased. The main idea of applying this principle in this area is to reduce the amount of time it takes to obtain the consent of the donor's relatives and, accordingly, to carry out a higher­ quality transplant to the recipient with the use of a smaller number of means to maintain the activity of this or that organ. The introduction of the principle of tacit consent in any country requires: firstly, a clear regulation, and secondly, it must be correlated not only with the domestic legislation of such a country, but also with international treaties ratified by this country in order to avoid misunderstandings and new precedents for the practice of the European Court of Human Rights.