Chapitre 2 THE EUROPEAN PROTOCOL ON ORGAN TRANSPLANTATION DOES NOT MEET PUBLIC EXPECTATIONS

Abstract

The Council of Europe’s Biomedicine Convention is a unique attempt to address the challenges of modern biology and medicine by providing a general legal framework for our continent. However, two of its provisions concerning persons not able to consent have met with extensive criticism, particularly in Austria and Germany. These are article 17 (protection of persons not able to consent to research) and article 20 (protection of persons not able to consent to organ removal). Unfortunately the current draft protocol on organ transplantation developing article 20 further will certainly not dispel these objections. There are three areas of particular concern:
Protection of persons not able to consent: These provisions should be strengthened by making it unmistakably clear that these persons are not – and will not be treated as – organ donors or organ/tissue recipients for experimental procedures under the conditions of this treaty. In addition, state-recognized registries for transplant activities including specifically those activities involving persons not able to consent should improve accountablity, reduce the possibilty of misuse and thus increase public confidence.
Public discussion: Bringing the issues raised by the Biomedicine Convention and its additional protocols to the attention of a wider public requires that ordinary citizens and not only legal experts understand the texts and language of the convention and its protocols. Particular care has to exercised to avoid any ambiguous terms leading possibly to mistakes. This has happened in the past with the draft version of the Convention itself and inflicted severe damage to public perception.
International co-operation: This area deserves much more emphasis. Eurotransplant now serving nearly 120 million people in 6 countries could be a model. Moreover, financial support by the EU for setting up an appropriate infrastructure in economically disavantaged countries should help these states to develop their own transplant systems in conformity with the highest human rights and medical safety standards. International collaboration against criminal activities including organ and tissue trafficking is of particular concern if public trust is to be preserved.
Improving these provisions could make this additional draft protocol – as well as the Convention itself – more acceptable to many.