The contract as the basis for the emergence of donor legal relationships

Iliushchenkova K.O., 
Post-graduate student, 
National Prosecution Academy of Ukraine

Contracts regulate of the legal relations between equal persons, ensure existence thereof and achievement of certain aim aim. Specific value of the imperative provisions in the legal regulation of the donor relations does not exclude the possibility of their contract-based regulation. However, the Civil Code of Ukraine does not distinguish a separate group of contracts regulating the relations of the removal of the parts of a human organism while alive or after death. Such a problem prompted to carry out a research concerning contract-based regulation of the donor relations.
Donor legal relations, taking into account their legal nature, are ones of civil legal character; therefore, they can be regulated by a civil contract. The Civil Code of Ukraine does not distinguish a separate group of contracts, the subjects of which would be human biological material or the actions of removing the latter.
Legal science offers to categorize the contracts in accordance with the parties to a contract. The plurality of the imperative provisions in the sphere of donorship determined the exact list of demands to the subjects of donorship. Nevertheless, the parties of contract-based donor legal relations directly depend on the objects of the right to donorship. As well as in the donor legal relations, the subjects of contract-based legal relations are the following: donor, medical institution, pharmaceutical company, recipient, as well as legal representatives or other persons according to the legislation.
The criterion for categorizing the contracts in the sphere of donorship is “the physiological state of the donor”. The parties of the legal relations of inter vivos donorship differ from the parties of the legal relations of post-mortem donorship. Inter vivos donorship can be characterized by the imperative specification of the list of persons who can be donors, as well as by the biological material acceptable for donation. Thus, the subjects of inter vivos donorship can be either anonymous or non-anonymous, depending on the object of donorship and kindred. If the donors are persons close to the recipient or if the legislation does not make a condition of the anonymousness of a person, donorship is non-anonymous; therefore, it is enough to conclude a contract between the donor and the recipient, the pharmaceutical company, and the third party to a contract – the medical institution – only has a mediating function in enforcing the right to donorship (subject – donor) and the right to medical treatment (subject – recipient). There are no exclusions when the recipient is a minor, in this case, the party to a contract will be the legal representative of the minor, incapable or partially incapable person or of the person who at the moment of receiving medical treatment cannot give approval for the medical treatment by method of transplantation in view of physiological processes. In case of post-mortem donorship, as well as when the donor is an anonymous person, a contract shall be concluded between the donor and the medical institution or the legal representative, the other person and the medical institution (in case when there is no ante mortem consent of the donor for the removal of donor material from his/her body after death); such contract is the one for the removal of human biological material.
Thus, one of the main features that define the parties of contract-based legal relations is the anonymousness of the donor and the physiological state of the donor. Therefore, the contracts in the sphere of donorship depending on the anonymousness and the physiological state of the donor can be categorized as follows: a contract of donorship with such parties as donor – recipient, pharmaceutical company – medical institution, and a contract for the removal of human biological material – donor – medical institution.
The process of enforcing the right to donorship comprises several stages. The main of them are the following: giving consent for the removal of donor material; the removal of such material and the use of the latter according to the aim of donorship, however, in the donor legal relations the process of removing the parts of a human organism is not as important as donor material itself. However, in the majority of cases, in order to achieve the aim of donorship, the help of a third party that actually consists in medical intervention into the organisms of both the donor and the recipient, is needed. Therefore, the subject of a donorship contract is human biological material.
On the other hand, there exists the position concerning the removal of human biological material to be the subject of a contract. Essential for this type of contract are both human biological material and the actions of removing donor material. Such idea is determined by the fact that the aim of donorship is the removal of human biological material to enforce the right to donorship, what can be done only by medical institution that in this case is a party not interested in donor material and only has a mediating function. However, human biological material can also be the subject of a contract since, engaging in the abovementioned actions, the parties to a contract must reach an agreement about the removal of specific biological material.
A contract is considered to be concluded in case of compliance with the requirements for its form. Generally, a contract can be concluded in any form if there are no specific legal requirements thereto.
The legislation neither stipulates the conclusion of a contract of donorship, nor bans it. The Civil Code of Ukraine allows choosing the form of a contract independently; moreover, laws and regulations do not stipulate in which form of donor’s consent for the removal of donor material should be given, except for the reproductive cells donation, homotransplant donation. However, in our opinion, a donorship contract and a contract for the removal of human biological material should be concluded in written form.
Essential contract provisions in the donorship sphere are the following: term of contract, provisions on early termination and on compensation of expected damage to health.
When concluding the contracts in the donorship sphere, their term depends on various factors. A contract for the removal of human biological material is being concluded between the donor and the medical institution, that is why, depending on the biological material that has to be removed from the donor, the term of contract is considered to be the moment of removing donor material (if the process of removal comprises several stages, then the moment of removing shall be the last stage); the moment of transferring it directly to the medical institution; the moment of payment according to the contract provisions if donation is commercial.
The term of donorship contract is considered to be the moment of removing donor material or the moment (depending on the subject of a contract) of: blood transfusion, giving human milk to the recipient, organ/tissue/cell transplantation, embryo transfer.
In addition, the provisions on early termination in the donorship sphere can be considered as essential. The peculiarity of a donorship contract lies in the fact that the donor can terminate a contract for convenience without fulfilling his/her obligations of giving donor material and without imposing any sanctions on the donor for failing to comply with contract provisions, after the conclusion thereof, as the named situation contradicts the principles of donorship and violates human rights.
The next essential contract provision is the compensation of expected damage to donor’s health as a result of performing his/her donor function. The compensation of expected damage is the provision of compensational character. Such compensation consists in compensating the costs spent on the recovery of the donor’s health as a result of performing his/her donor function. This sum shall be stipulated by the legislation or in the contract provisions, or confirmed with corresponding documents (cash-memos for the purchase of medication, receiving medical services and others) and does not compensate moral damage, since the compensation of moral damage for the removal of organs or other human anatomical parts would rather look like a purchase-and-sale contract than compensation as a means of protection. Therefore, the parties shall reach an agreement about the provisions on compensation of the damage.
So, let us define the notions “a contract of donorship” and “a contract for the removal of human biological materials”. A donorship contract is a civil transaction, the subject of which is human biological material not banned by the legislation. Such contract is concluded as their act of will and deed between the donor and the recipient, and defines the scope of rights and obligations that do not contradict the law, and creates civil legal relations that are non-proprietary and proprietary at the same time by their nature. 
Therefore, it is reasonable to categorize the contracts in the donorship sphere as follows: a donorship contract: the parties – donor – recipient, pharmaceutical company – medical institution, the subject of a contract – human biological material, essential contract provisions – term of contract, provisions on pre-term contract termination and on compensation of expected damage to health, form – written; and a contract for the removal of human biological material: the parties – donor – medical institution, the subject of a contract – human biological material, actions of removing human biological material, essential contract provisions – term of contract, provisions on pre-term contract termination and on compensation of expected damage to health, form – written. The author offers to formalize in civil legislation such object of civil rights as human biological material, and distinguish a group of contracts that regulate the legal relations with the abovementioned object.