Legal Responsibilities in Organ Transplantation and Donation Processes

What are organ transplantation and organ donation?

Organ transplantation is the process of replacing an organ that is damaged to the point of being unable to function with a healthy organ taken from a living donor or a deceased person. Organ donation, on the other hand, is when a person, while alive and of their own free will, allows their organs or tissues to be used in the treatment of other patients after their death. According to sources from the Ministry of Health, organ transplantation can be performed from cadavers or living donors; in living donor organ transplantation, kidney and liver transplants are particularly prominent in practice.

In Turkish law, the fundamental regulation concerning the procurement, storage, transplantation, and transfer of organs and tissues Law No. 2238 on the Procurement, Storage, Transplantation, and Transfer of Organs and Tissues. This law regulates the procurement, storage, transplantation, and transfer of organs and tissues for therapeutic, diagnostic, and scientific purposes; and encompasses all types of organs and tissues, as well as their parts, that constitute the human organism.

Organ transplantation is not merely a medical procedure. The process involves considering the human body, the right to life, bodily integrity, personal rights, consent, informed consent, privacy, medical records, organ distribution systems, brain death determination, protection of the living donor, the recipient's right to treatment, physician liability, and criminal law. Therefore, legal responsibilities in the organ transplantation and donation process constitute one of the most sensitive areas of health law.

Who can be an organ donor?

To be eligible to donate organs, a person must generally be of legal age and have the capacity to make reasoned decisions. According to the Ministry of Health's information regarding organ donation, anyone who has reached the age of 18 and is of sound mind can donate organs by applying to health directorates, hospitals, or organ transplant organizations.

However, having registered for organ donation does not mean that organs can be used after every death. In practice, one of the most important conditions brain death. According to Ministry of Health sources, even if organ donation has been registered, organs can only be transplanted from individuals who have experienced brain death in the intensive care unit; organs cannot be taken in other cases of death.

This distinction is often confused in society. If a person dies at home, on the street, in the emergency room, or in any hospital ward, most organs cannot be used for transplantation. This is because, in order for organs to be preserved for transplantation, death must occur under intensive care conditions and with a diagnosis of brain death.

The Difference Between Brain Death and Vegetative State

Brain death is one of the most important concepts in organ donation and cadaveric organ transplantation. Brain death is the irreversible loss of brain function. In its information, the Ministry of Health states that brain death is a state of medical death, should not be confused with a vegetative state, as breathing can continue in a vegetative state and some patients can live for a long time.

According to Law No. 2238, medical death is determined by unanimous decision of two physicians—one a neurologist or neurosurgeon and the other an anesthesiologist, resuscitation specialist, or intensive care specialist—in accordance with evidence-based medical principles. Furthermore, the recipient's attending physician and the physician performing the organ transplant are prohibited from being part of the death determination committee. This regulation aims to prevent conflicts of interest by ensuring that the death determination is made independently of the transplant team.

Therefore, the most important thing families need to know about the organ donation process is this: Brain death is not coma or a vegetative state. Brain death is medically defined as death. Organ donation procedures can only be initiated after this medical and legal determination has been made.

Organ Donation After Death and the Role of Relatives

The amendments made to Law No. 2238 in 2025 are significant in terms of organ donation. According to the current regulations, individuals can declare their intention to donate their entire body or organs and tissues for treatment, diagnosis, and scientific purposes through the e-Government Portal or the Ministry of Health's information systems; they can also express their intention to donate through an official or written will, or by making a statement in the presence of two witnesses. The law stipulates that if the donor's intention expressed during their lifetime conflicts with the wishes of their relatives, the donor's will shall prevail.

This change is significant because it allows the declaration of organ donation to be made digitally using secure identity verification tools. The amendment to the Organ Transplantation Services Regulation in 2025 also stipulated that organ donation transactions could be carried out electronically via the organ donation application on the e-Government Portal or the e-Nabız System, completed with two-factor authentication, and that the donation declaration could be modified.

If a person has not made any statement regarding organ donation during their lifetime, the consent of a close relative present at the time of death becomes relevant. According to the law, in this case, organs or tissues can be taken from the deceased with the consent of their spouse, adult children, mother or father, or sibling; if none of these are present, then with the consent of any other close relative.

Therefore, it is important for individuals to express their explicit will to donate organs while they are alive. Recording this donation intention through e-Government or e-Nabız helps reduce potential hesitations and disagreements within the family after death.

Organ Harvesting from a Living Donor

Organ donation from a living donor is subject to different and more sensitive legal conditions than organ donation from a deceased donor. This is because in this case, a healthy or relatively healthy person donates an organ or part of their tissue for the treatment of another person. Therefore, the protection of the living donor, whether their consent is genuine, whether they were under duress, and the health risks of organ donation must be evaluated in detail.

According to Law No. 2238, it is prohibited to take organs and tissues from individuals under the age of 18 who lack the capacity to make reasoned decisions. For organs or tissues to be taken from a person who is 18 years of age or older and possesses the capacity to make reasoned decisions, the donor's explicit, conscious, uninfluenced, and duly obtained consent is required. This consent must be obtained in writing and signed, or through a verbal statement in the presence of two witnesses, recorded in a document, and approved by a physician.

The obligation of physicians to provide information when harvesting organs from living donors is extremely broad. The law requires physicians harvesting organs and tissues to adequately explain to the donor the potential dangers and medical, psychological, familial, and social consequences of the procedure; to inform the donor about the benefits to the recipient; to refuse donations from individuals who are unable to make their own decisions; to investigate whether the donor's spouse is aware of the decision if the donor is married; and to reject attempts to donate organs for financial gain or for purposes that do not serve humanitarian interests.

The consent of the living donor must be genuine and free

The most important legal issue in organ donation from a living donor is the validity of consent. Did the donor truly consent to donate the organ of their own free will? Was there family pressure, economic pressure, threats, emotional manipulation, debt, inheritance pressure, or a promise of financial gain? The physician and the transplant center must evaluate these factors.

Consent from a living donor is not simply a matter of signing a form. The donor must be clearly informed of the risks of the surgery, the impact on post-operative quality of life, the possibility of loss of productivity, the psychological effects, the social consequences, potential complications, and the right to withdraw consent. If the donor has given consent under duress or without being informed of the real risks, this consent becomes legally questionable.

Therefore, in the process of obtaining organs from a living donor, informed consent forms, psychosocial assessments, ethics committee procedures, medical suitability reports, laboratory results, imaging records, and physician consultations are of great importance. In the event that the donor suffers harm afterwards, these documents become decisive evidence in a compensation lawsuit.

Organs and Tissues That Cannot Be Harvested

Law No. 2238 prohibits the removal of organs and tissues that would absolutely end or endanger the donor's life. Furthermore, before the removal, transplantation, or transfer of organs and tissues, it is mandatory to conduct necessary medical examinations and tests to minimize risks to the lives and health of both the donor and the recipient, and to document the results in a feasibility report.

This arrangement is particularly important for the protection of the living donor. Even if the transplant is vital for the recipient, the donor's life and health cannot be put at disproportionate risk. The donor's medical suitability must be assessed objectively. Renal function, liver reserve, cardiovascular status, infection risks, psychiatric status, pregnancy, chronic diseases, and surgical risks must be examined in detail.

Failure to conduct necessary medical examinations or the use of risky donors for organ donation can result in liability for both physicians and the transplant center. Liability for compensation and penalties may arise if the donor suffers postoperative kidney failure, liver failure, infection, permanent disability, or psychological harm.

Responsibility of Organ Transplantation Centers

The procurement, transportation, storage, transplantation, transfer, and acquisition of organs and tissues from abroad can only be carried out by institutions authorized by the Ministry of Health and possessing the necessary expert personnel and equipment. This provision of Law No. 2238 clearly demonstrates that organ transplantation is not an ordinary medical procedure and must be performed in authorized centers.

The Ministry of Health's Department of Tissue, Organ Transplantation and Dialysis Services has announced the publication of the Organ Transplantation Services Regulation, which is accessible through the Ministry's website. The regulation serves as fundamental secondary legislation regarding organ transplantation centers, organ sourcing centers, tissue typing laboratories, and the principles to be followed in the operation of organ transplantation services.

The transplant center's responsibility is not limited to performing the surgery alone. This responsibility also includes medical suitability assessment of the donor and recipient, laboratory tests, tissue and blood type compatibility, infection screening, surgical preparation, organ retrieval, preservation, transportation, transplantation, postoperative intensive care, drug therapy, immunosuppressive therapy, discharge, and long-term follow-up.

Legal Responsibility in Organ Distribution

One of the most sensitive issues in organ donation is determining who the donated organ will be transplanted to. According to the Ministry of Health, patients who will receive organs are determined based on criteria such as blood type and tissue type compatibility, age, height, weight, and medical urgency.

Transparency, a proper record-keeping system, and objective criteria are vital at this point. Giving unfair priority in organ distribution, prioritizing a patient without medical urgency, manipulating records, directing an organ to an unsuitable recipient, or making decisions based on personal relationships or interests can all lead to serious legal consequences.

Irregularities in organ distribution do not only create administrative liability; depending on the specifics of the case, liability for damages, disciplinary actions, and criminal penalties may also arise. If a patient awaiting an organ transplant loses their chance for a transplant, their illness progresses, or they lose their life due to an unfair procedure, they can pursue legal avenues against the administration or the relevant healthcare institution.

Priority Arrangement for Relatives of Organ Donors

One of the amendments made to Law No. 2238 in 2025 concerns the spouses and first-degree relatives of organ donors whose organs have been transplanted. According to the added regulation, spouses and first-degree relatives of organ donors whose organs have been transplanted are given priority after emergency patients in case they need organ transplants.

The 2025 amendment to the Organ Transplantation Services Regulation also includes a similar provision; it states that the spouses and first-degree relatives of donors whose organs have been transplanted will be given priority after emergency patients if they need organ transplants.

This regulation aims to encourage organ donation and protect the donor's family. However, priority does not imply an absolute right to a transplant. Criteria such as medical suitability, urgency, tissue and blood type compatibility must still be evaluated.

Confidentiality of Organ Donation Declaration and Personal Data

Organ donation declarations constitute personal data and are of particular sensitivity in terms of health data. According to the recent amendment to Law No. 2238, organ donation declarations are recorded in the Ministry of Health's central registration system in accordance with Law No. 6698 on the Protection of Personal Data. Furthermore, donation declarations are communicated to the individuals designated by the donor at the time of declaration and are not disclosed to anyone else before brain death is determined.

This regulation aims to protect the donor's consent and privacy. Sharing the donor's consent to organ donation with employers, insurance companies, non-family members, or unrelated healthcare personnel may constitute unlawful data processing and a violation of privacy.

Confidentiality of recipient and donor information is also crucial in the organ transplantation process. Especially in cadaveric transplants, it is essential to protect the information of both the recipient and donor families, prevent unauthorized disclosure of records, and ensure that health data is processed only for treatment purposes.

Prohibition of Organ Trafficking

The sale of organs and tissues is explicitly prohibited under Turkish law. Law No. 2238 prohibits the buying and selling of organs and tissues for a fee or other benefit. Furthermore, advertising related to the buying and selling of organs and tissues is also prohibited, except in cases of disseminating scientific, statistical, or news-related information.

Article 91 of the Turkish Penal Code regulates the crime of organ or tissue trafficking. According to this article, a person who takes an organ from another without legally valid consent is punished; a person who unlawfully takes an organ or tissue from a deceased person also commits a crime. Penal provisions also apply to those who buy, sell, or act as intermediaries in the sale of organs or tissues. The penalties are more severe if committed within the framework of organized crime; individuals who conceal, transport, or transplant organs or tissues obtained through unlawful means also incur criminal liability.

Therefore, organ donation can under no circumstances be the subject of sale, debt repayment, financial gain, inheritance bargaining, or commercial brokering. If a financial gain is involved under the guise of a "voluntary donation," the transaction may be both legally invalid and constitute a crime under criminal law.

Compensation Liability of Physicians and Healthcare Organizations

In the organ transplantation process, medical errors, insufficient information, incorrect eligibility assessment, surgical errors, infections, improper organ preservation, delayed transplantation, mismanagement of organ rejection risk, medication errors, or lack of follow-up can cause harm to the patient or the living donor. In such cases, liability for financial and non-financial compensation arises.

From the perspective of the living donor, harm may manifest as surgical complications, loss of organ function, permanent disability, loss of earning capacity, psychological trauma, or donating an organ without adequate information. From the recipient's perspective, transplant failure, inappropriate organ transplantation, infection, mismanagement of immunosuppressive drugs, lack of follow-up, or delayed detection of organ rejection may be grounds for compensation.

In cases of organ transplant errors occurring in private hospitals, private law and consumer law provisions may apply; in cases of errors occurring in public hospitals, administrative law and full judicial review may be relevant. However, in all cases, medical records, informed consent documents, ethics committee documents, donor evaluation reports, laboratory results, surgical notes, intensive care unit records, and post-discharge follow-up documents are critical evidence.

Organ Transplant Error at State Hospital

If an organ transplant takes place in a state hospital, a public university hospital, or a city hospital, the healthcare service is considered a public service. If this service is poorly provided, delayed, or not provided at all, the administration may be considered to have committed a service defect.

In this situation, instead of directly filing a compensation lawsuit against the doctor in the criminal courts, it is necessary to apply to the relevant administration and then file a full judicial review lawsuit in the administrative court. The application period to the administration and the lawsuit filing period should be carefully calculated according to the specific case. Especially in technical cases such as organ transplantation, it is important to know when the harm was discovered, when the error occurred, and the date of organ rejection or permanent damage.

When pursuing legal action at a state hospital, it is crucial to correctly identify the defendant administration. The incident may have occurred at a Ministry of Health hospital, a public university hospital, or another public health institution. Applying to the wrong administration or missing deadlines can lead to loss of rights.

Organ Transplant Error at Private Hospital

If the organ transplant is performed in a private hospital, a private law relationship exists between the hospital and the patient based on the provision of healthcare services. The private hospital is responsible for the transplant center's authority, expert staff, operating room and intensive care unit conditions, laboratory and tissue compatibility procedures, organ preservation process, infection control, medication management, and follow-up services.

A private hospital or private transplant center can be held liable not only for the mistakes of the surgeon performing the operation, but also for organizational deficiencies. For example, if the donor's suitability assessment was incomplete, if the recipient was not informed of the transplant risks, if there were errors in organ preservation, if intensive care monitoring was inadequate, or if post-transplant medication was mismanaged, the hospital may be held responsible.

The competent court in these cases should be determined based on the specific circumstances. While private healthcare services can often be considered consumer transactions, in cases involving serious bodily harm, such as organ transplants, the legal strategy cannot be based solely on the logic of reimbursement. Compensation for material damages, moral damages, loss of earning capacity, caregiver expenses, and loss of support in case of death must all be considered together.

What types of compensation can be claimed during an organ transplant?

Individuals who suffer harm due to illegality or medical malpractice during the organ transplant or donation process may claim material and moral damages if the conditions are met.

Compensation claims may include medical expenses, re-operation costs, intensive care expenses, medication costs, travel and accommodation expenses, caregiver expenses, temporary disability, permanent disability, loss of earnings, and damage to economic future. If the living donor's ability to work decreases after organ donation or requires long-term treatment, these damages must be calculated separately.

Non-pecuniary damages are claimed due to the suffering, fear, psychological trauma, impairment of bodily integrity, decreased quality of life, organ loss, arduous surgical procedures, unlawful consent, or violation of privacy experienced by the individual.

If the patient or donor has passed away, their relatives may claim compensation for loss of support and moral damages. In this case, the causal link between the death and medical malpractice or illegality is evaluated through expert reports.

Evidence in Organ Transplantation Cases

The evidence gathering process is extremely important in organ transplant cases. Evidence includes organ donation declarations, e-Government or e-Nabız records, family consent documents, brain death certificates, records of the medical board that determined death, ethics committee decisions, living donor consent documents, donor and recipient test results, tissue and blood group compatibility records, surgical notes, intensive care unit records, infection results, medication tracking records, discharge documents, and long-term follow-up forms.

According to Law No. 2238, physicians who determine a death must prepare a signed report indicating the date and time of death and how the death was determined; this report and its attachments are kept in the relevant healthcare institution for ten years.

Therefore, especially in the process of cadaveric organ transplantation or donation, brain death certificates, family consent, donation declarations, organ preservation protocols, and transplant coordination records can be decisive in legal disputes. Incomplete records, inconsistencies in records, or failure to provide these to the patient's relatives can also give rise to legal liability.

The Importance of Expert Reports

Organ transplant cases require technical expertise. The court may seek expert opinions from specialists in organ transplant surgery, intensive care, anesthesia, nephrology, hepatology, infectious diseases, immunology, pathology, forensic medicine, and other related fields.

The expert report should seek answers to the following questions: Were the donor and recipient medically suitable? Was the donor adequately informed? Was consent obtained freely? Was brain death determined according to proper procedure? Was the organ properly preserved and transplanted? Was post-transplant follow-up in accordance with medical standards? Is there a causal link between the harm and medical malpractice?

Incomplete expert reports must be challenged. In complex cases like organ transplantation, simply stating "it's a complication" or "there's no fault" is insufficient. The report must concretely examine medical records, legal consent conditions, the ethics committee process, the protection of the living donor, and the organ distribution system.

Conclusion: Organ Transplantation and Donation Processes Must Be Carried Out Meticulously

Organ transplantation and organ donation are crucial medical practices that save human lives. However, because this process is directly related to the human body and the right to life, it is subject to strict legal regulations. Consent for organ donation, determination of brain death, protection of living donors, organ distribution, confidentiality of personal data, prohibition of organ trafficking, authorization of transplant centers, and medical follow-up processes are central to these legal responsibilities.

For organ donation from a living donor, the donor must be at least 18 years old, have the capacity to understand and make reasoned decisions, and have given their consent freely and explicitly. The donor must be informed in detail of the medical, psychological, family, and social consequences; the procedure should be refused if there is any suspicion of financial gain or coercion. For organ donation from a deceased donor, brain death must be properly determined, and the donor's wishes while alive or the consent of their relatives as stipulated by law must be taken into account.

If harm occurs during the organ transplant process due to errors, insufficient information, missing records, illegality in organ distribution, improper organ preservation, negligence in infection management, or lack of post-transplant follow-up, a lawsuit for material and moral damages can be filed. In private hospitals, private law and consumer law should be considered; in state hospitals, administrative law and full judicial review should be considered.

Therefore, if it is believed that a loss of rights has occurred during the organ transplantation or donation process, all medical and administrative records should be collected without delay, donation and consent documents should be examined, the distinction between private and public hospitals should be accurately made, and thorough preparation should be made for the expert examination process. The fundamental aim in the organ transplantation process is to protect both the recipient's right to life and the donor's bodily integrity and free will to the highest degree.