Subjective Rights in the Organ Allocation System | Max-Planck-Institut für Sozialrecht und Sozialpolitik - MPISOC
Doctoral Group: "Health Law"

Subjective Rights in the Organ Allocation System

The dissertation project is in the field of health law with a focus on constitutional law. It examines the subjective legal status of potential recipients of post-mortem donated organs in the German transplantation system. Despite a large number of monographs in this area, the question remains unanswered as to whether and to what extent subjective rights of those waiting in the transplantation system exist and have or should have an influence on allocation decisions and the procedure.

In the first part, the thesis undertakes an in-depth analysis of existing statutory law. The legal relationships between the patient and the various public and private parties involved in the transplantation system are currently not clarified. In addition to the already widely recognised subjective right of access to the transplantation system in form of access to the waiting in case of medical indication, the work elaborates various already existing rights, which relate in particular to the patient's informational legal position and the procedure for obtaining a decision.

The second and main part critically assesses the existence of subjective rights against the background of fundamental rights of the patient. Using the example of organ allocation as a special, existence-threatening scarcity situation, the extent to which derivative rights of participation in state-provided benefits influence the distribution procedure is determined. This can result in constitutional, subjectively enforceable obligations of the state, particularly with regard to procedural transparency and organisational structure (procedural optimisation requirement) and the increase in resources through acceptance of innovative medical methods (capacity exhaustion requirement).


Franciska Engeser