Legal Regulation of the Capacity in the Operations of Transfer and Organ Transplant and Its Impact in Determining the Nature of the Medical Liability An Analytical Critical Study
Dr. Bin Saghir Mourad
Faculty member – Faculty of Law and Political Science – Abu BakrBelcaid University – Tlemcen – Algeria
Abstract:
Capacity plays a key role in all actions whether in terms of Islamic or civil aspects, so that various legislations deal with minors with special treatment and grants them exceptional protection. The importance of capacity is clearly reflected in the operations of organ transfer and transplant in human beings. Therefore, the Algerian legislator strives to put an integral legal system designed to protect the minor regarding the operations of organ transfer and transplant whether as a donor or as a beneficiary. This is done through various health laws, family law and criminal law, all of which have tackled the legal status of the minor.
This article deals with the lack of capacity and its impact on the operations of organ transfer and transplant, through clarifying the importance and the role of capacity in obtaining the minor’s permission based upon an informed consent in organ transfer and transplant operations. It is also concerned with the mechanisms and legal guarantees that ensure the necessary protection of minors. Then, this paper highlights the most important civil and Islamic law implications for incapacity of the minor regarding organ transfer and transplant operations, whether on the minor’s account, the practitioner or physician’s account or the minor’s guardian or legal representative’s account.
Accordingly, this article attempts to provide answer for a few legal problems related to the minor’s capacity concerning the operations of organ transfer and transplant. For instance, to what extent does the minor’s capacity matters if there is a legal guardian? How legitimate are the operations without the minor’s permission or his representative? What will be the legal impact (responsibility)? Is it possible to operate without the consent of the minor or even his legal representative if his interest so requires? Have various legislations including, Algerian legislation, been able to establish legal provisions, which are harmonious, integral to ensure a great deal of protection for the minor in such cases?