How to increase the number of organ donations:

And what price does the donor have to pay?


In Varanasi, on the banks of the holy Ganges, tourists wanted to attend a traditional cremation. To the relatives of the burning candidate who were standing around, it was said that he was already dead, and that he should now be placed on the pile of wood and set fire to it. Meanwhile, they were arguing with the tourists so loudly that the dead man woke up, grabbed his bundle and went home again.

On 8th January 2019, the German government presented the draft of a second law to amend the Transplantation Act (BT-Drucksache 19/6915). By improving cooperation and structures, a de facto increase in organ donations should be achieved. It seems alarming that the living will is often overrated in practice, although an organ donation declaration is available.


Consistent legal removal of obstacles to increased organ donation

At present, intensive care equipment is often switched off due to a lack of indications and cost units for medical treatment that is no longer necessary, especially after an irreversible dying process has begun. Medical ethics and professional law also play a role here, as well as the (presumed) will of the patient, and sometimes also the possible liability of treating physicians for pain and suffering compensation. However, this would undermine the intentional removal of organs.


Organ removal presupposes brain death

The new law provides for consistent implementation with financing, in that the hospital receives compensation for the time between intensive care that is no longer medically necessary and the occurrence of brain death – in addition to the time thereafter up to and including the removal itself. As before, the organ donor’s health insurance (KV) only pays for medically necessary intensive care. For everything else, up to post-mortem organ removal, the patient’s KV is no longer obliged to provide services – and never has been.


Donor organs must not be damaged by painkillers

Afterwards, intensive care is continued so that the patient’s organs “stay fresh” until they are removed (preservation of transplantability). Minutes, hours, days or weeks can pass before brain death occurs – or the dying person can even start to breathe independently again and lapse into a permanent vegetative state. The German Medical Association (Bundesärztekammer) means that in the case of already suspected brain death of the organ donor, the vital functions may be maintained until brain death has been determined – for a short period of time, in any case even against a patient’s decree to the contrary.


Legal strengthening of the transplant officer and donor selection

Clinics must appoint a physician as transplantation officer (TPB), who is authorized to issue instructions to the treating physicians for patients with organ donor cards. From then on, everyone else is just a wheel in the gearbox, without comprehensive responsibility. And the TPB is only responsible for ensuring that there are enough organs and that as few as possible are overlooked – which is why statistics on potential but unused organ donors are also mandatory.

A certain period of time within which brain death must be expected is not specified. From the perspective of flat rates per case (DRGs), however, calculations must be made here. These force a selection of the withdrawal candidates according to the expected time span until expected brain death, so that the intensive care treatment required until then only for this can be financed on average.


Organ donor card cancels living will?

Anyone who wants the life-supporting measures to be discontinued in the living will, but who has an organ donor card, thus clearly shows that when the living will was drawn up he may have received legal advice, but certainly not medical advice, if the two contradict each other, with the result that his living will may not even be effective? In any case, however, it can be interpreted by the TPB determining what, contrary to the wording, was the real will of the patient with a simultaneous desire to donate.

In any case, the organ donation declaration cannot be invalidated by the hypothetical assumption that the patient was not aware of the necessity of continuing intensive care measures – until brain death occurred – and would not have agreed to organ donation under these conditions.

There is currently a debate on whether every citizen should be required to declare their intention to donate an organ when collecting a new identity card with a reservation in a register. Some voices want to legally make everyone who does not refuse to donate an organ – which is then described as a so-called contradiction solution, as contained in a recently presented draft from the Ministry of Health.


Consent is dispensable in countries with opposition resolution

Rarely will someone come up with the idea of wearing an inseparable bracelet, necklace or tattoo with the content “organ removal prohibited”. In many countries, including the European Union (EU), everyone is automatically an organ donor – unless, for example, the objection is noted in a register, or relatives are informed and take care that the objection is respected. Every EU citizen who has lived in Belgium for at least six months is affected. The family is not always available for interviews.


Living will may become obsolete for organ donors

If, on the other hand, a higher court were to see it the other way round, i.e. always give priority to the living will – for example because the time until brain death was associated with additional suffering, and no “consumer protection notice” was attached to the official organ donor card – the clinic and the TPB would be able to be liable for damages (also in relation to heirs); see OLG Munich, Ref. 1 U 454/17, judgment of 21 December 2017 – which the Federal Court of Justice, however, recently overturned. This is also the case when, with a little “luck”, the patient who was prevented from dying other than brain death does not end up as an organ donor months later, but continues to live as a coma patient.

After all, the Pope thought that most Catholic marriages were also ineffectively entered into, for lack of awareness of what one actually wanted to explain there. Considered in this way, the organ donor may have been unaware of the catharsis caused by certain pain at the end of life when making his decision. In future, courts will decide whether this was an irrelevant error of motive – or a considerable error of character regarding the side effects of organ donation.


Sample living wills with provisional power of attorney often ineffective?

The Federal Court of Justice (BGH, decision of 08.02.2017, Ref. XII ZB 604/15) already decided: “The written statement that “life-prolonging measures are not taken“does not in itself contain the concrete treatment decision of the person concerned which is necessary for a binding advance directive. Rather, it is important that an individual and personal reference to specified diseases or treatment situations is included. This was repeated by the Federal Court of Justice (decision of 14.11.2018, Ref. XII ZB 107/18); this decision was issued after the person concerned had already been in a persistent vegetative state for more than 10 years.

The Federal Court of Justice (decision of 6 July 2016, ref. XII ZN 61/16) requires – for consent, nonconsent, revocation of consent regarding medical measures – a sufficiently clearly formulated text of the power of attorney so that “the decision-making authority of the authorised representative” is effective. The mandatory content of the power of attorney must include an indication that “the respective decision may be associated with a justified risk of death or serious and long-term damage to health”.

BGH rules that disregard of the living will has practically no consequences

By judgment of 2 April 2019 – Ref. VI ZR 13/18 – the Federal Court of Justice clarified that a doctor is never liable for measures that prolong life and suffering, neither for compensation for pain and suffering nor for costs, even if he or she violates duties and simply disregards a Patient Decree that clearly states otherwise:

Human life is a legal good of the highest order and absolutely worth preserving. No third party is entitled to judge its value. Therefore it is forbidden to regard life – even a life of suffering – as damage (Article 1.1, Article 2.2 sentence 1 GG). Even if a patient himself may consider his life to be unworthy of life with the consequence that a life-supporting measure must be refrained from against his will, the constitutional system of all state powers, including case law, prohibits such a judgement on the life of the affected patient with the conclusion that this life is a harm.

The plaintiff is also not entitled to compensation for the treatment and care expenses incurred as a result of the patient’s survival. The protective purpose of any information and treatment obligations in connection with life-sustaining measures is not to prevent economic burdens associated with survival and the illnesses inherent in life”.



Removal of organs even contrary to an explicit order in the patient’s will?

This makes it easier for a potential organ donor to undergo life-prolonging intensive therapy up to brain death for the purpose of organ removal, even against a clear living will, because it has no legal consequences for the doctor treating him. Rather, he can see the life of the organ recipient as the primary objective to be pursued.


If the living will is invalid with or without a power of attorney, the transplant officer will find it easier to lead his regiment. He does not have a treatment contract from the patient – and can therefore hardly come into conflict with it. Rather, his responsibility is to increase the number of organ removals and to remove obstacles on this path. However, according to the Federal Court of Justice, if the Patient Decree is effective and the wording would stand in the way of life-prolonging intensive therapy to achieve organ removal, it can ultimately be disregarded to achieve a higher goal without the physician having to fear consequences.


Prohibit organ removal?

The TPB can hardly expect any resistance; and if it does, it can simply ignore it, if necessary without consequences, in order to pursue the desired goal of permitted organ donation.

The way the TPB deals with the pension fund representative or caregiver is a matter of communication. There can always be agreement that it depends on the will of the patient. He wanted to donate an organ, as evidenced by the possession of an organ donor card. The preventive medical practitioner or caregiver may then explain how he or she imagined this, if the organs previously failed irreversibly due to lack of ventilation before brain death? It should often be the result that the enabling of organ donation should prove to be the primary will.

If the pension fund representative or guardian agrees with this view – the TPB has achieved its goal. If not, the TPB’s documentation with witnesses will show that the pension fund representative or caregiver was unable to provide valid reasons and even tried in a morally reprehensible manner to bring about a result contrary to the will of the organ donor. With the result that one or more possible organ recipients on the waiting list die.

Should it later – after about 8 years – turn out that this was not legally correct, this does not bother you either, because no claims will follow from this. In the absence of an interest in declaratory judgment, actions may therefore be inadmissible from the outset, especially in the case of an objection to the living will.

Only those who have expressly objected to organ donation are unlikely to be affected. Unless the corresponding handwritten note is not found in the wallet between the bank notes and receipts, or even not searched for at all, for example for data protection reasons on the instructions of the hospital data protection officer.



by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm

by courtesy of (published on 06.05.2019)


and (published on 21.05.2019)


and (published on 15.05.2019)



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Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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