[Questions from a medico-legal viewpoint on the planned law dealing with removal and transfer of organs (transplantation law) in West Germany].

Within the framework of the planned law concerning the removal and transfer of organs (transplantation law) in the Federal Republic of Germany, and taking as a basis the draft of a prototype law by the federal states dated February 1st 1994 and the draft bill of the states of Bremen and Hessen dated June 30th 1994, the speech addresses itself primarily to the question of whether, when no consent of the decreased can be identified, and when the next-of-kin have been informed by the doctor in attendance and given an appropriate time-limit, the next-of-kin in order of succession or any close relative can object to organ removal for the purpose of transplant surgery. Because of the highly personal nature of the postmortal personal rights transferred to the next-of-kin as well as their custodial rights, and with regard to the particularly sensitive nature of this decision, it is suggested that the next-of-kin be informed not only of their right of refusal but also-in view of their responsibility toward other relatives-be instructed on the meaning, substance and legal consequences of such a refusal. It is furthermore suggested that sufficient organs could be obtained by organisational measures such as requests to driving licence applicants, which would lead to a higher preparedness to donate organs, while, at the same time, sparing the next-of-kin unnecessary emotional pain. From a medical point of view, it should be recognised that the complete and irreversible loss of all brain functions, in spite of artificially maintained heart and circulatory functions, is a sure sign of death. In closing, it is pointed out that a change to the currently valid [symbol: see text] 168 StGB would mean that a violation of the right of refusal could lead to criminal prosecution.