Legislative methods of transplanting laws. At present, the United States is the most typical country and region that adopts a special legislative model. 1966, the United States proposed that brain death is a sign of clinical death. 1968, at the 22nd World Medical Congress, the special committee for judging the definition of brain death of Harvard Medical College proposed "irreversible loss of brain function" as a new death standard, and formulated the world's first diagnostic standard for brain death, namely "Harvard Standard". 1970, Kansas, USA, took the lead in formulating the brain death law, death and death definition bill. 1978, the United States promulgated the Unified Brain Death Act (UBDA), which formally defined brain death as "irreversible termination of brain function including brain stem function". In the United States, brain death legislation and organ transplantation legislation are carried out separately, and organ transplantation legislation is earlier than brain death legislation. As early as 1968, that is, the year when the United States put forward the "Harvard brain death standard", the American Bar Association and other organizations initiated and passed the Unified Organization Donation Act (UAGA), and by 1973, the bill had been passed in 50 States and the District of Columbia. From 65438 to 0984, the United States passed the National Organ Transplantation Act with higher legal effect. In this way, in the United States, the donation and transplantation of human organs are generally regulated by the organ transplantation law, and the judgment of brain death is regulated by the brain death law; If the judgment and implementation of brain death are involved in the process of organ transplantation, it will be bound by both organ transplantation and brain death.

Adopting a special legislative model has the following advantages: (1) brain death and organ transplantation are regarded as two legal issues with both connections and substantive differences, and different laws are applied respectively, which clearly divides the boundaries between brain death and organ transplantation in legislation to avoid confusing organ transplantation with brain death; (2) Because the significance of brain death lies not only in organ transplantation, but also in the fact that it is a more scientific concept of death, special legislation on brain death is conducive to highlighting the legal status of brain death, enabling people to understand brain death more comprehensively and scientifically, thus paying more attention to brain death; (3) Formulating a special brain death law and applying it to the problem of brain death is conducive to establishing and embodying the authority of brain death law and improving the actual effect of its operation; (4) In organ transplantation, the unified application of brain death method and organ transplantation method reflects the cooperation and support of brain death method to organ transplantation method, which is beneficial to the development of organ transplantation activities; (5) Most importantly, legislating on brain death alone will help people avoid the sensitive issue of organ donation, which will not only make them more willing to recognize and accept the concept of brain death, but also will not have a potential negative impact on the implementation of organ transplantation. On the other hand, the disadvantages of adopting the special legislative model of brain death are also obvious, which are embodied in the following two aspects: (1) separating brain death from organ transplantation and formulating and applying the brain death law separately, which obviously increases the investment in legislation and the operating cost of the law, and objectively increases the responsibility and burden of law enforcers; (2) In the case that the existing science cannot prove that brain death is absolutely scientific and error-free, it is very risky to legislate on brain death.

(B) Spain's mixed legislative model

The so-called mixed legislative model means that brain death is not legislated separately, but stipulated in organ transplantation law together with other contents, especially organ transplantation, as an important content of organ transplantation law. Different from the special legislation on brain death in the United States, Spain's brain death law is integrated into its organ transplantation law. 1979 The Organ Transplantation Law passed by the National Assembly directly stipulated the concept of brain death and its judgment requirements. According to these regulations, brain death refers to the complete and irreversible loss of brain function; If it is brain death, there must be three doctors' diagnosis certificates; There must be clinical evaluation and relevant examination to confirm that the diagnosis of donor death meets the requirements of legal procedures. Obviously, Spain does not regard brain death as a problem completely independent of organ transplantation, but regards it as a natural content of organ transplantation. Because of this, Spain has not enacted a special brain death law like the United States, but directly stipulated the problem of brain death in the organ transplant law.

The legislative model of brain death in Japan inherited the legislative model of brain death in Spain, which first appeared in 1994 and finally took shape in 1997 when its Law on Donation and Transplantation of Human Organs was promulgated. As early as June 65438+April 0994, Article 6 of the Organ Transplantation Law proposed by Japan's "All-Party Agreement on Brain Death and Organ Transplantation" to the National Assembly dealt with the problem of brain death flexibly. This article stipulates: "Doctors may take organs from the deceased (including brain death, the same below) for transplantation if one of the following conditions is met. 1. The deceased expressed his willingness to donate organs for transplantation in writing before his death, and the family members who knew this intention had no objection or the deceased had no family members. 2. The deceased expressed his willingness to donate organs for transplantation in writing before his death, or although the deceased did not express this willingness, his family members expressed their consent in writing. 3. The brain death designed above refers to the deceased who is judged that the function of the whole brain, including the brain stem, has stopped irreversibly. 4. The judgment of brain death should be based on recognized medical knowledge and the orders of the Ministry of Health, Labor and Welfare … "[2] Obviously, this bill in Japan is not specifically aimed at brain death, but at organ transplantation. Its legislative purpose is to solve the legal problem of doctors extracting organs from brain-dead people for transplantation. There is no model for this bill. It is not limited by organ transplantation, but it can't get rid of the internal relationship with organ transplantation.

3. In the past, when some scholars in medical theory advocated the legislative proposal of brain death law, they regarded brain death law as the main basis to solve the shortage of donor organs for organ transplantation, and wrongly analyzed the relationship between brain death law and organ transplantation, which led many people to form prejudice against brain death legislation, that is, they thought that brain death legislation served the guarantee law for doctors to collect human organs from brain-dead people. Misguided by this prejudice, people not only show strong resistance and rejection to brain death law, but also have some misunderstandings about organ donation. If the mixed legislative model is adopted and brain death and organ transplantation are stipulated in the same organ transplantation law, it will not only aggravate people's misunderstanding of brain death law, but also go against people's recognition and acceptance of brain death, which is likely to have a negative effect of "hating my family and my family" and will also cause people to conflict with organ transplantation law.

4. As a more scientific concept of death than traditional cardiogenic death, brain death not only ensures the success rate of organ transplantation, but also provides a clear legal basis for the scientific death standard of brain death, and provides legislative support for the termination of civil rights and civil capacity and the establishment of homicide. If the mixed legislative model is adopted, it is easy to reveal the significance of brain death law in organ transplantation, and cover up or even obliterate its more important significance in other aspects than organ transplantation.

5. With regard to brain death, Taiwan Province Province has adopted a special legislative model with reference to the practice of the United States. 1987 In June, Taiwan Province Province formulated the Regulations on Human Organ Transplantation, and in September of the same year, it promulgated the procedures for judging brain death. If China also adopts a special legislative model in this regard, it will obviously help to avoid the legal conflict between Chinese mainland and Taiwan Province Province on the issue of brain death, help the two places to carry out more extensive and close economic and cultural exchanges and exchanges, and make contributions to the ultimate reunification of the motherland.

Based on the analysis of the above five aspects, we believe that China's brain death law should adopt a special legislative model, that is, to formulate brain death law separately, instead of confusing brain death with organ transplantation and unifying brain death law and organ transplantation law into the same law. Of course, separating brain death from organ transplantation and making a separate brain death law immediately does not mean that we can ignore the special relationship between brain death and organ transplantation and completely decouple brain death from organ transplantation. Even brain death is not stipulated in organ transplantation law, and organ donation and organ transplantation are not mentioned in brain death law. On the contrary, due to the internal relationship between brain death method and organ transplantation method and the need to coordinate the relationship between the two methods, brain death still needs to be mentioned in organ transplantation method in China, and the practical need of organ transplantation still needs to be fully considered in brain death method. To do this, you need to

In China's Organ Transplantation Law, it should be stipulated that doctors can take organs from the deceased who voluntarily donated their bodies or organs before their death or donated their bodies or organs with the consent of their families after their death. However, if the death of patients is judged according to the standard of brain death, it needs to be strictly carried out in accordance with the provisions of the brain death law. In the brain death law, it is also necessary to stipulate that organ harvesting of brain-dead people for transplantation requires the consent of brain-dead people before their life or after their death, and organ harvesting is carried out in accordance with the relevant provisions of the Organ Transplantation Law.