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Death, Dying, and Organ Transplantation$
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Franklin G. Miller and Robert D. Truog

Print publication date: 2011

Print ISBN-13: 9780199739172

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199739172.001.0001

Legal Fictions Approach to Organ Donation, with Seema K. Shah

Chapter:
7 Legal Fictions Approach to Organ Donation, with Seema K. Shah
Source:
Death, Dying, and Organ Transplantation
Author(s):

Franklin G. Miller

Robert D. Truog

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199739172.003.0016

Abandoning the dead donor rule faces practical difficulties, especially as it would require changing current formulation of laws relating to homicide. In this chapter we offer a pragmatic alternative account of vital organ donation that invokes the concept of legal fictions. Current practices of vital organ donation are characterized as based on unacknowledged legal fictions. We advocate making these legal fictions transparent by acknowledging that legal determinations of death in the context of organ donation do not coincide with a biological definition of death. Although vital organs are justifiably being procured from still-living patients, the appeal to legal fictions permits maintaining the dead donor rule as a legal norm. The movement from unacknowledged to transparent legal fictions can be a step on the way to honest public policy that reflects the reality of vital organ donation.

Keywords:   legal fictions, status fictions, anticipatory fictions, transparency

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