Transplant Surgery and The Criminal Law
| Author | D. O'Connor |
| DOI | 10.1177/000486587000300404 |
| Published date | 01 December 1970 |
| Date | 01 December 1970 |
| Subject Matter | Original Articles |
AUST. &N.Z. JOURNAL OF CRIMINOLOGY (Dec., 1970): 3, 4 223
Surgery
and
Law
Transplant
The Criminal
D.
O'CONNOR
*
THE
transfer
of
parts
of one body
into
another
raises issues in
many
branches
of
the
law.
In
this
paper
it
is
intended
to deal
with
transplant
operations as
they
concern
the
criminal
law.
In
some
areas
in
private
law
other
and
different
questions arise
and
these
would
need
to be considered separately. So, for
example, in
the
law of succession
it
may
in
some circumstances be necessary
to consider problems
relating
to
the
nature
and
time
of death! for purposes
of
taxation
or
inheritance.
This
may
mean
that
it
will be necessary in
the
law of succession to
have
different
detmittons
of "life"
and
"death"
from
those appropriate to
the
criminal law.
However
this
may
be,
it
is clear
that
in
the
criminal law,
at
least,
many
of
the
issues
are
discernible, even if
it
is
not
always easy to offer solutions.
Two
main
questions
that
are
important
to consider
are
those con-
cerned with criminal responsibility
and
the
associated
but
distinct
questions
arising from
the
problems of defining life
and
death.
The various forms of
transplantation
may
also need to be distinguished.
For
example,
the
transplantation
of nerves
and
small
parts
of
the
body
may
present
different
questions from those
raised
by
larger
transplants,
such
as
renal
transplantatlonss,
and
these
again
present
different questions
from those arising
in
the
special case of
cardiac
transplants.
With
the
first of
these
categories
the
law
can
be expected to deal with
them
in
the
ways
it
deals
with
ordinary
surgical assaults.
The
effect of
the
long development of
the
common law
has
been to
permit
the
forms of
assault
used in surgery as
not
being,
in
law, assaults
either
because
the
recipient of
the
surgery consented to
what
might
otherwise
have
been
an
assault, or
perhaps
for some reason arising
out
of necessity.
This
latter
justification for surgical assaults seems
appropriate
where, for example,
the
recipient of surgery
is
incapable of consent.
The
law, however, draws
the
line
at
certain
types of assault.
In
some
circumstances
it
will
not
excuse
an
assault
solely on
the
ground
that
it
was
consented to.
So
in
Donovan's
Case which is reported in [1934] 2 K.B.
498,
the
Court said
at
p. 507:
If
an
act
is unlawful in
the
sense of being in itself a
criminal
act,
it
is
plain
that
it
cannot
be rendered lawful because
the
person to whose
detriment
it
is done consents to it. No person
can
license
another
to
*Ph.D., Senior
Lecturer
in Law, Australian National University.
1 So, for example,
the
phrase
"during
the
lifetime of X"
might
need to be reconsidered.
2. The
reduced
life
expectancy
of donors,
particularly
in
twin
and
other
sibling
donors
and
the
special case of
overborne
child donors,
are
of
particular
importance.
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