Abstract:
This article assesses the influence of the Constitution of the Republic of South Africa,
1996 on the law pertaining to organ transplants with specific reference to methods
of organ procurement. These methods include a system of opting-in, presumed
consent, required request, required response, the sale of organs, and organ
procurement from prisoners. It is argued, in view of the acute shortage of organs,
that the various organ procurement methods are in need of review in the context of
the question of whether they are acceptable and sustainable within the constitutional
framework. To this end, the article deals with the application, limitation and
interpretation of the rights in the Bill of Rights and its interface with the various
organ procurement methods in the context of a discussion of applicable legislation
and relevant case law. It is argued that a constitutional analysis of the topic is
indicative that the State has indeed failed to provide a proper or satisfactory
legislative and regulatory framework to relieve the critical shortage of human organs available for transplantation, by ultimately failing to uphold the applicable
constitutional rights and values as discussed.
