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Using Mentally Incompetent Adults as Living Organ Donors: Widely Diverging Regulations in Europe

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Abstract With the current situation in Belgium as its initial focus, this article will examine the regulatory framework that governs the use of mentally incompetent adults as living organ donors in Europe. Our survey of the national regulation of 22 countries will reveal widely diverging viewpoints, ranging from an absolute prohibition on organ procurement to a barely restricted authorisation to retrieve even non-regenerable organs. We also have a look at the way in which American and English court decisions have applied the best interests standard in an attempt to define the contours of acceptable organ removal from mentally incompetent donors. Taking the best interests of the mentally incompetent person as a yardstick, we suggest that legally prohibiting organ removal from mentally incompetents may be problematic, even if it concerns only non-regenerable organs, and that regulations should be refined accordingly.


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