Legal Fictions Approach to Organ Donation, with Seema K. Shah

Franklin G. Miller and Robert D. Truog

in Death, Dying, and Organ Transplantation

Published in print October 2011 | ISBN: 9780199739172
Published online January 2012 | e-ISBN: 9780199918683 | DOI:
Legal Fictions Approach to Organ Donation, with Seema K. Shah

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Abandoning the dead donor rule faces practical difficulties, especially as it would require changing current formulation of laws relating to homicide. In this chapter we offer a pragmatic alternative account of vital organ donation that invokes the concept of legal fictions. Current practices of vital organ donation are characterized as based on unacknowledged legal fictions. We advocate making these legal fictions transparent by acknowledging that legal determinations of death in the context of organ donation do not coincide with a biological definition of death. Although vital organs are justifiably being procured from still-living patients, the appeal to legal fictions permits maintaining the dead donor rule as a legal norm. The movement from unacknowledged to transparent legal fictions can be a step on the way to honest public policy that reflects the reality of vital organ donation.

Keywords: legal fictions; status fictions; anticipatory fictions; transparency

Chapter.  8850 words. 

Subjects: Moral Philosophy

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