Servicio de Publicaciones de la Universidad de Navarra
Hervada , Javier. ""Los transplantes de órganos y el derecho a disponer del propio cuerpo"". Persona y Derecho, 2 (1975) : 195-254.
This article begins with a few preliminary terminological explanations which the
author believes to be necessary: al the distinction between transfusions and transplants,
which are usually included in the same category by moralists and jurists;
bl the difference between transplants of organs, tissues, and members.
The author then proceeds to study the right over one's own body, with the
understanding that the well-known formula homo non est dominus membrorum
suorum must be interpreted juridically as the inexistence of any absolute right of
disposition over one's own body. The contents and limits of the right over one's
own body are regulated by three principies: the indirect voluntary (double effectl
principie, the principie of totality, and the moderata castigatio corporis.
With regard to transfusions, the author points out the requirements of liceity
on the part of donor and recipient, and draws particular attention upon the subject
of conscientious objectors (i.e., Jehovah's Witnessesl.
In relation to trasplants, the author studies those which have been performed
directly between humans, with special attention given to those between two living
persons. The liceity of this last case -apart from other requirements which are
expounded upon in detail- rests upon the following conditions: al that the finalit
Y of the donation be an act of human solidarity; bl that the donor not become
gravely jeopardized as a result.
With regard to transplants between a deceased donor and a live recipient, the
authors insists upon the need to respect the cadaver and to secure due authorization.
The author also studies, with special care, border-line cases in which the
donor may find himself: hopeless, clinically dead, artificially alive, recuperable.