Remigius Nwabueze, ‘Proprietary interests in organs in limbo’

A host of activities jeopardise the safety of an excised organ: an organ transported across local, regional, state or national boundaries could be damaged or lost in transit. A thief might snatch the organ from the possession of the transplant team; a transplant surgeon could use the organ for the treatment of their relative or patient, a celebrity or an influential political figure, instead of transplanting the organ into the properly selected and designated recipient. Also, the organ could be damaged maliciously by a third party. Furthermore, a live donor might change their mind after the organ had been retrieved, or the intended recipient might die before a scheduled transplant, after the organ had been retrieved from a live donor. In the above cases, the organ is in a state of limbo, prompting an enquiry into the appropriate remedial responses of the law for a claimant. Non-proprietary remedies might be helpful in the above scenarios, but fail to provide the necessary continuing control. Accordingly, the first section of this paper considers whether positive law recognises the existence of proprietary interests in excised organs; absent such protection, this paper suggests that the law should recognise proprietary interests in excised organs.

Remigius N Nwabueze, Proprietary interests in organs in limbo. Legal Studies, Volume 36, Issue 2, pages 279–301, June 2016.

First posted 2016-04-19 11:09:30

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