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Tissue and Organ Transplantation in Health Law

Dilek Yavuz Uysal
Organ Bağışı Hukuk
Organ Donation Law

Organ Donation Law | Organ Transplantation in Law | Health Lawyer | Izmir Law Firm

Organ and tissue transplantation is a medical procedure and therefore subject to the general rules of medical intervention. However, while medical procedures normally involve a patient, transplantation involves both a patient and a healthy individual.

This situation also necessitates special regulations regarding organ and tissue transplantation.

Giving one's own organ or tissue to another person, even with consent, when it does not benefit the donor themselves (subject to provisions in special regulations), is essentially a violation of personal rights. 

For the organ donor, consent alone does not render the act lawful. Since organ or tissue transplantation from living donors is not possible under general legal provisions, there is a necessity for a special regulation to make such medical interventions lawful, and this necessity is enshrined in our legal system. Law on the Procurement, Storage, Transplantation and Transfer of Organs and Tissues This is ensured by the Organ and Tissue Procurement Law (ODNK). According to ONDK, the procurement, storage, transplantation, and transfer of organs and tissues for treatment, diagnosis, and scientific purposes are subject to the provisions of this law.

In tissue and organ transplantation, for organs and tissues to be taken from a person who is eighteen years of age or older and of sound mind, it is mandatory for the donor to have given their consent in writing and signed beforehand, openly, consciously and without coercion, in the presence of at least two witnesses, or to have made a verbal statement in the presence of at least two witnesses and signed a record, which must then be certified by a physician.

Physicians Who Will Receive Organs and Tissues 

  1. To properly and thoroughly inform the donor about the risks involved in organ and tissue harvesting, as well as the medical, psychological, familial, and social consequences;
  2. To inform the donor about the benefits the recipient will receive from the organ and tissue donation;
  3. Refusing to accept organs and tissues from individuals who, due to their mental and psychological state, are not capable of making independent decisions;
  4. If the donor is married, it is necessary to investigate and ascertain whether the spouse with whom the donor lives is aware of the donor's decision to donate organs and tissues, and to document this fact in a written record;
  5. To refuse to accept organs and tissues offered in exchange for payment or other gain, or for reasons contrary to humanitarian principles;
  6. Except in cases where there is a blood or marital relationship or close personal connection, they are obliged to keep the names of the recipient and the sender confidential.

Before organ and tissue procurement, transplantation, and transfer, it is mandatory to conduct necessary medical examinations and tests to minimize potential risks to the life and health of both the donor and the recipient, and to document the results in a suitability report.

What are the criminal penalties in tissue and organ transplantation? How do they arise?

Persons who unlawfully acquire, sell, buy, act as intermediaries in the sale of, store, transport or transplant organs and tissues, or who advertise or publish announcements for the purpose of obtaining organs or tissues, are subject to the provisions of Law No. 5237 dated 26/9/2004. Turkish Penal CodeThe provisions of article 91 of the law shall apply.

Bu Kanuna aykırı şekilde embriyo ve üreme hücresi bağışlayan, aşılayan, bulunduran, kullanan, saklayan ve nakledenlerle bunların alım ve satımını yapanlar, alım ve satımına aracılık edenler veya komisyonculuğunu yapanlar veya bu fiilleri özendiren, bunlara yönlendiren veya bunlara yönelik ilan veya reklam veren veya yayınlayan kişiler hakkında, fiil daha ağır cezayı gerektiren bir suç teşkil etmediği takdirde üç yıldan beş yıla kadar hapis ve bin günden iki bin güne kadar adli para cezasına hükmolunur. Bu Kanunun ek 1 inci maddesine aykırı fiili tespit edilen kişilerin sertifika ve izin belgeleri iptal edilir ve ilgili alanda çalışmalarına izin verilmez.

It is prohibited to open organ transplantation and assisted reproductive treatment centers without permission from the Ministry. Those who do not comply with this prohibition will be subject to the provisions of Law No. 3359 dated 7/5/1987. Basic Law on Health ServicesThe provisions of additional article 11 of the law shall apply.

Healthcare institutions and organizations operating in violation of this Law and the procedures and principles determined by the Ministry shall be subject to sanctions such as suspension of operations or revocation of operating licenses, depending on the nature and recurrence of the offense.

Both the Organ and Tissue Transplantation Law and Turkish Penal Code It regulates organ or tissue transplantation between humans. Organ or tissue transplantation within the same person is permitted and is not covered by these laws. Similarly, organ or tissue transplantation from animals is not prohibited as it is not subject to legal regulation and is governed by general medical procedures. 

Until 2004, organ and tissue transplantation was regulated in all its aspects only in the Law on the Acquisition, Storage and Transplantation of Organs and Tissues (ODNK). However, the new law enacted in 2004 and which came into force on June 1, 2005... Turkish Penal Code’Three provisions have been introduced regarding organ and tissue transplantation in [the law]. Therefore, both laws must be considered separately today.

Organ and tissue trafficking crime, The crime of organ or tissue trafficking is regulated in Article 91 of the Turkish Penal Code (TCK), under the section "Crimes Against Bodily Integrity." The law allows for the taking of organs or tissues not only from living individuals but also from deceased persons. The taking of organs or tissues from deceased individuals is subject to certain conditions under the law. A crime is committed if organ transplantation is performed without the person's consent or in exchange for any benefit.

The Supreme Court, in some of its decisions regarding the crime of organ trafficking, also points out that Article 3 of the Organ and Tissue Transplantation Law prohibits the purchase or sale of organs and tissues for a fee. The decisions also detail the need for the court to consider the relevant article of the law when making its rulings.

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