Legalization Of Givng Compensation To Donors In Transplanting Humans Organs In Indonesia

Widodo, Heri Sugeng (2020) Legalization Of Givng Compensation To Donors In Transplanting Humans Organs In Indonesia. Doctoral thesis, Untag 1945 Surabaya.

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Abstract

The present disertation is entitled "Legalization of Compensation for Donors in Human Organ Transplantation in Indonesia", with a law issue as the background that was vagueness of norms (vaagheid van normen) in giving compensation to donors by the recipient and norm conflicts in the articles of Minister of Health Regulation No. 38 of 2016 concerning the Implementation of Organ Transplantation which allows the provision of grants, which is a form of a named agreement and other articles which prohibit any agreement between the donor and the recipient. The problem focus discussed in the present dissertation included: What is the nature of compensating donors for transplants of human organs in Indonesia? 2). What is the requirement of giving compensation to donors in transplanting human organs in Indonesia? and 3). What is the concept of regulating the legalization of compensation to donors in the future for transplanting human organs in Indonesia? The present study was conducted in juridical normative (normative legal research) type with approaches including a statutory approach, a conceptual approach, a philosophical approach, a case approach, and a comparative approach. Sources of legal materials used primary legal materials, secondary legal materials and tertiary legal materials. The collection and processing of legal materials were conducted by searching for legal materials. Further, a qualitative juridical analysis was carried out using a legal theory and concept foundation and the presentation was conducted in the form of narrative description. Based on the results of the study, it can be concluded that the nature of compensating for the organization of organ transplants is the appreciation of the organ donor (donor) carried out by organ recipients (recipients) who voluntarily give their organs to recipients who need new organs due to the inability of their own organs. An individual who has given their organs will certainly affect the quality and optimization of their lives including those meeting their economic needs. Similarly, someone who has done an organ transplant certainly needs treatment costs after the organ harvesting. Basically, organ transplants must be based in the framework of humanity, mutual assistance and voluntary, in order to prolong life.In the normative level, regulations made by the government in order to regulate the organization of organ transplants in Indonesia currently use the basis of statutory regulations, namely Law No. 36 of 2009, Government Regulation No 18 of 1981, Minister of Health Regulation No. 37 of 2014 and Minister of Health Regulation No. 38 of2016 The government regulation has been aged 28 (twenty-eight) years and until now the preparation of the new regulation had not been completely prepared. Whereas, the substance or content of government regulation No.18 of 1981, Minister of Health Regulation No. 37 of 2014 and Minister of Health Regulation No. 38 of 2016, as the analysis conducted due to lack of clarity or vaagheid van normen and conflict in the rule. Arrangements for compensation in the form of awards from recipients to donors do not explicitly and clearly regulate how the mechanism is well in the laws and regulations. Article 36 paragraph (2) letter b and Article 37 paragraph (2) letter b Minister of Health Regulation No. 38 of 20 16 concerning Organizing Organ Transplants explains that it prohibits the existence of any special agreements between recipients and donors regarding organ transplants. Whereas, in Article 38 paragraph (1) letter c and Article 39 paragraph (3) the agreement between the recipient and the donor is possible, namely a grant agreement as a form of appreciation. As we know that grant is in the form of a mutual agreement so-called as civil law. Since it is contrary to the norm, in the implementation of organ transplants between donors and recipients avoids written agreements.In organizing 'organ transplants in the future, the giver of compensation (recipient) should provide compensation as a sign of gratitude to the organ giver (donor). As regulated in the requirement of Minister of Health Regulation No. 38 of 2016 concerning Organ transplantation article 36 paragraph (1) stating that; "Each donor has the right to obtain death insurance and" awards "for loss of income from work/livelihood during the treatment and recovery of health after organ transplantation determined by the Minister. As a recommendation, the government must harmonize the existing laws and regulations related to organ transplantation implementation, including immediately completing government regulations with the aim of being able to adapt the interests of all relevant parties, namely donors, recipients, and implementing transplants so that there are no more transplants performed "Under the hand", with clarity whether in the form of grants or awards. The government should revise Law No. 36 of 2009 concerning Health as a legal umbrella for awarding donors so that it is not only in the Minister of Health Regulation. It is suggested in Article 64 Law No. 36 of 2009 concerning Health which previously consisted of 3 (three) verses added to 4 (four) verses that allow recipients to compensate donors. Immediately establish National and Provincial Transplant Committees as mandated by Article 4 and Article 5 Minister of Health Regulation No. 38 of 2016 in all parts of Indonesia as the representative of the government in charge of regulating and supervising and bridging between recipients and donors in organizing organ transplants.

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