不适格近亲属捐献遗体器官的非正当性分析

[中图分类号]R-052 [文献标志码]A [文章编号]1001-8565（2025）11-1387-05

DOI：10.12026/j.issn.1001-8565.2025.11.02

Abstract： The Civil Code of the People's Republic of China clearly stipulates that if a natural person has not expressd their disagreement to donation during theirlifetime，the spouses，adult children，and parents may jointly make a writen decision to donate the deceased’s body and organs.This provision has further sparked the discussion on“whether the ineligible close relatives have theright or should have the right to donate the body and organs under the premise that the spouses，adult children，and parents of the deceased are absent or have lost their civil capacity.”This paper argued that it was illegitimate for ineligible close relatives to donate the deceased’s body and organs.From the perspective of the basis for rights，close relatives obtained the ownership of the bodyand organs due to their identity relationship with the deceased.However，given that the donation differed from burial and other disposal forms，further restrictions needed to be imposed.The Civil Code excludes ineligible close relatives from legally qualified subjects through“specific identity，”thereby depriving them of the legal basis to donate the deceased's body and organs.In terms of harmful consequences，on the one hand，donation by ineligible close relatives may fail to ensure respect for the deceased's right to selfdetermination.Onthe other hand，it was difficult todistinguish whether their motivation fororgan donation was from“goodnessor“profit".If the intention to donate was driven by profit，then the act of donation would be tantamount to organ trafficking，which is highly harmful.Evenunder the special premise that the legally qualified subjects were absent or had lost their fullcivil capacity，the right to donate body and organs could not be obtainedand exercised by ineligible close relatives，as it is enjoyed based ona specific identity relationship and has personal exclusivity. Therefore，it is illegitimate for ineligible close relatives to donate the deceased's body and organs.

Keywords： deceased body and organs donation;ineligible close relative;basis of right；harmful consequence

0 引言

器官移植是20世纪重要的医学成就之一。（剩余6413字）