What is organ transplantation?

Organ transplantation is the process of replacing an organ that is damaged to the point where it can no longer function with any existing treatment options, with a healthy organ taken from a living or deceased donor. Transplantation of organs such as the kidney, liver, heart, lungs, pancreas, and small intestine are among the serious and high-risk medical procedures that directly affect a patient's lifespan and quality of life.

In Turkish law, the procurement, storage, transportation, transplantation, and transfer of organs and tissues are primarily Law No. 2238 on the Procurement, Storage, Transplantation, and Transfer of Organs and Tissues . This law states that the procurement, storage, transplantation, and transfer of organs and tissues for therapeutic, diagnostic, and scientific purposes are subject to its provisions. Furthermore, the details of organ transplantation services, including centers, personnel standards, supervision, registration, brain death, living donors, ethics committees, and prohibitions, the Organ Transplantation Services Regulation . This regulation covers universities, public institutions, and private healthcare organizations.

Organ transplantation is not merely a surgical procedure. The process involves a comprehensive assessment of the recipient's medical suitability, donor protection, organ source, organ allocation procedures, waiting lists, consent, information gathering, brain death determination, ethics committee approval, organ storage and transportation, postoperative follow-up, and management of infection and rejection risks.

Fundamental Legal Principles in Organ Transplantation

The most fundamental principle in organ transplantation law is that the human body cannot be turned into a commercial commodity. According to Law No. 2238, the buying and selling of organs and tissues for a fee or other benefit is prohibited. The same law also prohibits advertising related to the buying and selling of organs and tissues, except in cases of disseminating scientific, statistical, or news-related information.

This ban aims to prevent not only the open exchange of money, but also the profiteering under the guise of "donations," brokering, advertising for organ procurement, exploiting the desperation of patients, and the transformation of organ transplantation into a commercial market. Legally, organ transplantation can only be performed for therapeutic, diagnostic, and scientific purposes and in accordance with the procedures stipulated in the legislation.

Organ trafficking also has serious consequences from a criminal law perspective. Article 91 of the Turkish Penal Code criminalizes the removal of organs from a person without legally valid consent, the unlawful removal of organs or tissues from a deceased person, and the purchase, sale, or brokering of organs or tissues.

Organ Transplantation from a Living Donor

Living donor organ transplantation is when a healthy or relatively healthy person donates an organ or part of an organ to another person, not the entire organ, but one that will not absolutely end or endanger their life. In practice, living donors are most frequently used for kidney and liver transplants.

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 must give their explicit, conscious, and unforced consent in the presence of at least two witnesses. This consent must be in writing and signed, or verbally stated in the presence of two witnesses, recorded in a document, and certified by a physician.

For living donors, the legal validity of consent is crucial. If the donor is pressured by family, economic hardship, emotional coercion, debt, or some other ulterior motive to donate an organ, the validity of the consent is questionable, even if there is a visible signature. Therefore, whether the living donor's true will is free is one of the most sensitive legal issues in the organ transplantation process.

The Right of the Live Transmitter to be Informed and Protected

A living donor is not merely an "organ donor"; they are a patient in their own right who needs protection. Law No. 2238 obligates physicians who will be receiving organs and tissues to inform the donor about the potential dangers of organ donation and the medical, psychological, familial, and social consequences. Furthermore, if the donor is married, it is necessary to investigate and document whether their spouse is aware of the donor's decision to donate organs.

Physicians are obligated to refuse to donate organs and tissues from individuals who are not mentally or psychologically capable of making independent decisions, and to refuse donations made for monetary compensation or other gain, or for reasons contrary to humanitarian purposes. Furthermore, they have an obligation to keep the names of the donor and recipient confidential, except in cases of blood relationship, marital relationship, or close personal connection.

Therefore, the approach of telling a living donor, "They're already a close relative, you have to donate," is legally unacceptable. The donor has the right to learn about the risks before surgery, to seek an opinion from another physician, to make a decision without coercion, to withdraw from the procedure, to request protection of their privacy, and to have their case monitored after surgery.

The protection of living donor rights has also been institutionalized in the Organ Transplantation Services Regulation. The regulation defines the concept of "living donor rights protector" to safeguard the medical and ethical rights of living donor candidates; and it mandates this appointment in centers where living donor transplants are performed.

Organs that cannot be taken from a living donor

Organ harvesting from a living donor must remain within limits that do not pose a serious risk to the donor's life and health. Law No. 2238 prohibits the harvesting of organs and tissues that would absolutely end or endanger the donor's life. Furthermore, before organ and tissue harvesting, transplantation, or transfer, it is mandatory to conduct necessary medical examinations and tests to minimize risks to the life and health of both the donor and the recipient, and to document the results in a suitability report.

This provision increases the responsibility of the hospital and the physician in live donor surgeries. The donor's kidney function, liver capacity, psychiatric status, cardiological risk, infection risk, surgical risk, and long-term health status must be evaluated in detail. The health and safety of the donor cannot be disregarded simply because "the recipient is in an emergency.".

If a living donor is taken to surgery without sufficient testing, if the risks are not explained, if an organ is taken from an unsuitable person, or if the donor is not adequately monitored after surgery, then liability for compensation, penalties, and administrative damages may arise.

Organ Transplantation from Cadavers and Brain Death

Organ transplantation from a deceased donor is only possible if death has been legally established and the conditions for organ donation have been met. Brain deathis one of the most important concepts in organ transplantation. The Organ Transplantation Services Regulation defines brain death as the complete and irreversible loss of all brain and brainstem functions.

According to Law No. 2238, medical death is determined by a unanimous decision of two physicians—one neurologist or neurosurgeon and one anesthesiology and resuscitation or intensive care specialist—in accordance with evidence-based medical principles. It is prohibited for the recipient's attending physician and the physicians responsible for the organ and tissue procurement, storage, transplantation, and transfer to be members of the committee determining death.

This prohibition is vital to preventing conflicts of interest. Separating the physicians who make the decision of death from the team that performs the transplant protects both the trust of the donor's relatives and the legal legitimacy of the organ transplant system.

According to sources within the Ministry of Health, organ transplantation cannot be performed after every death, even if organ donation has been registered; organs can only be used if brain death occurs while the patient is in the intensive care unit and on a ventilator.

The Deceased Person's Will to Donate and the Role of Relatives

With the amendments made to Law No. 2238 in 2025, the donation intention of a deceased person during their lifetime has been more strongly regulated. Accordingly, organs or tissues can be taken from a deceased person if they declared during their lifetime, through secure identity verification tools via the e-Government Portal or the Ministry of Health's information systems, that they wanted to donate their organs for treatment, diagnosis, or scientific purposes, or if they stated this in an official or written will, or if they made this declaration in the presence of two witnesses. Even if the donor's wishes contradict those of their relatives, the donor's wishes are taken as the basis.

If there is no explicitly stated intention to donate organs through these procedures, organs or tissues may be taken from the deceased with the consent of their spouse, adult children, mother or father, or sibling who is present at the time of death; if none of these are present, then the consent of any close relative may be obtained. If the person stated during their lifetime that they were against the removal of organs or tissues after death, then organs and tissues cannot be taken.

This regulation demonstrates the importance of personal consent in organ transplantation law. Relatives play a role; however, if the deceased person expressed a clear and valid intention to donate during their lifetime, that intention is taken as the basis. The law also stipulates that organ donation declarations will be recorded in the Ministry of Health's central registration system in accordance with the Personal Data Protection Law (KVKK), and that donation declarations will not be disclosed to anyone other than those identified before the determination of brain death.

Priority in Transplantation for Donor Relatives

With the 2025 amendment, it was stipulated that the spouses and immediate family members of donors whose organs have been transplanted will be given priority after emergency patients should they need organ transplants in the future. This provision is an important innovation aimed at strengthening social trust and the willingness to donate in the organ donation system.

This priority is not unlimited. Urgent patients have priority, and the organ distribution system must still be conducted within the framework of medical suitability, waiting lists, urgency, tissue compatibility, and regulatory criteria. Therefore, being a relative of a donor does not automatically entitle one to a transplant in all cases; however, it does provide a special priority status recognized by legislation.

Licensing and Standards Responsibility of Organ Transplantation Centers

Organ transplantation can only be performed in institutions authorized by the Ministry of Health and possessing the necessary expert personnel and equipment. Law No. 2238 stipulates that the procurement, transportation, storage, transplantation, and transfer of organs and tissues shall be carried out by institutions authorized by the Ministry of Health and possessing the necessary expert personnel and equipment.

The Organ Transplantation Services Regulation also states that organ transplant centers must meet minimum unit, equipment, and personnel standards according to the type of organ; centers that do not meet these standards will not be granted licenses or operating permits. Furthermore, organ transplant centers are inspected at least once a year; extraordinary inspections may be conducted in cases such as a series of deaths resulting from transplants performed at the center.

Therefore, performing organ transplants in unauthorized centers or allowing an organ transplant center to continue operating despite having lost its minimum standards constitutes a serious legal violation. The regulation prohibits the opening of private centers for organ transplantation or the performance of organ transplants without permission from the Ministry; it also prohibits organ transplantation without recipient and donor registration.

Waiting List, Organ Distribution and the Principle of Equality

One of the most sensitive issues in organ transplantation is the waiting list and organ allocation. Since organs from deceased donors are limited, which patient receives which organ must be determined according to medical and ethical criteria. At this point, patient equality, medical urgency, tissue compatibility, waiting time, geographical coordination, organ preservation period, and regulatory criteria are crucial.

The Organ Transplantation Services Regulation governs structures such as the National Coordination Center, Regional Coordination Center, organ distribution services, and the National Coordination System. The regulation also stipulates that sanctions may be applied if non-compliance with legislation or incorrect procedures are detected during the operations of organ transplantation centers, and that the Ministry will monitor and supervise these centers.

Therefore, legal responsibility may be discussed if a patient is not placed on the waiting list at all, is incorrectly assigned to the waiting list, an error is made in the organ suitability assessment, an urgent list request is not made in a timely manner, or the principle of transparency is violated in the organ distribution process.

Informed Consent in Organ Transplantation

Organ transplantation is a medical procedure involving significant risks. Therefore, both the recipient and the living donor must be thoroughly informed. The recipient should be informed about the purpose of the transplant, the likelihood of success, surgical risks, organ rejection, infection, the possibility of intensive care, the risk of death, lifelong immunosuppressive drug use, drug side effects, the need for follow-up, and alternative treatment options.

The medical, psychological, familial, and social consequences of organ donation must also be explained to the living donor. This obligation is explicitly regulated in Law No. 2238. Not only the benefits, but also the risks to the donor must be explained honestly and clearly.

Informed consent is not just a signature. The validity of consent is questionable if the patient or donor hasn't understood what they read, if the medical risks haven't been explained, if the signature was obtained under duress, if an interpreter wasn't provided for a foreign patient, or if sufficient time for consideration wasn't given in non-urgent situations.

Examples of Medical Errors in Organ Transplantation

Medical errors in organ transplant cases can occur at many different stages. The recipient or donor may not have been adequately evaluated in the pre-transplant period. Serious consequences can arise if tissue compatibility, infection screening, blood type, cross-matching, cardiological risk, cancer screening, kidney and liver function, psychiatric suitability, or medication adherence are not properly assessed.

During transplantation, surgical technique errors, vascular connection problems, improper organ storage, exceeding the cold ischemia time of the organ, incorrect organ or incorrect registration, anesthesia errors, lack of bleeding control, or operating room organization deficiencies may occur.

In the post-transplant period, infection control, early detection of organ rejection, monitoring of drug levels, intensive care monitoring, biopsy, imaging, laboratory monitoring, and post-discharge follow-up processes are crucial. The Organ Transplantation Services Regulation defines serious adverse events and serious adverse reactions as occurring in the chain from donation to transplantation, associating them with outcomes such as death, life-threatening conditions, permanent disability, incapacity for work, or prolonged hospital stay.

Therefore, if a patient's fever, kidney dysfunction, elevated liver enzymes, decreased urination, shortness of breath, infection, drug toxicity, or signs of organ rejection are not taken seriously after transplantation, liability for compensation may arise.

Infection and Organ Rejection in Organ Transplantation

Infection and organ rejection after organ transplantation are known medical risks. The presence of these risks alone does not necessarily mean medical malpractice. However, improper management of these risks can lead to legal liability. Transplant patients are more susceptible to infections because they use immunosuppressive drugs. Therefore, hospital infection control, isolation, drug level monitoring, laboratory monitoring, and patient education are crucial.

Organ rejection is not always preventable. However, liability arises if early signs of rejection are not noticed, biopsy or laboratory follow-up is delayed, immunosuppressive drug doses are incorrectly adjusted, the patient is not called for follow-up, or post-discharge warnings are not given.

In such cases, expert examination must distinguish between complications and negligent culpability. The general statement "organ rejection may occur" is insufficient; it must be examined whether the follow-up, examination, treatment, and intervention process in the specific case complied with medical standards.

Organ Transplant Error at Private Hospital

If an organ transplant is performed in a private hospital, private law liability arises. The private hospital may be responsible not only for the surgeon who performed the operation, but also for the entire process including the transplant center's licensing, coordination, intensive care, anesthesia, infection control, laboratory services, tissue compatibility, organ storage, registration systems, patient information, and post-operative follow-up.

A private hospital cannot absolve itself of responsibility in every case by simply stating, "a complication developed." The investigation will examine whether the complication was foreseeable, whether it was explained to the patient, whether necessary precautions were taken, and whether timely intervention was provided when the complication arose.

In private hospital organ transplant files, patients or their relatives should request the following documents: treatment contract, invoice, consent forms, transplant council decisions, laboratory records, surgical notes, intensive care records, drug level records, infection records, and post-discharge follow-up documents.

Organ Transplant Error at State Hospital

If organ transplantation is performed in a state hospital, city hospital, training and research hospital, or public university hospital, the process is in most cases evaluated within the scope of administrative law. Organ transplantation services in public hospitals are public services. If this service is poorly performed, delayed, or not performed at all, the administration may be held liable for negligence.

For example, the administration's responsibility is questionable if a patient is incorrectly registered on the waiting list, there is an organizational failure in appropriate organ notification, post-transplant intensive care monitoring is inadequate, infection or rejection signs are detected late, or donor/recipient evaluation is incomplete.

Patients or their relatives who have suffered harm in a public hospital must, in most cases, file a full judicial review case in the administrative court after first applying to the relevant administration. The application should detail the chronology of the event, the alleged medical malpractice, the nature of the damage, the items of material and moral compensation requested, and the required medical records.

What types of compensation can be claimed?

If the conditions are met, a recipient or living donor who has suffered harm due to medical malpractice or illegality during the organ transplant process may claim monetary and non-monetary compensation.

Compensation claims may include surgical expenses, intensive care costs, medication costs, re-operation costs, treatment for infection or organ rejection, dialysis costs, rehabilitation, caregiver costs, travel and accommodation expenses, temporary disability, permanent disability, loss of earnings, and disruption of economic future.

In addition to living donors, the permanent loss of health, loss of earning capacity, psychological harm, long-term follow-up expenses, and decrease in quality of life resulting from organ donation should also be considered in the compensation calculation. Since the donor is the person who risks themselves for the treatment of the recipient, the duty of medical and legal care towards them is extremely high.

Compensation for emotional distress may be claimed due to suffering, fear, risk of death, organ loss, permanent disability, intensive care period, psychological trauma, impact on family life, and violation of personal rights. If the patient or donor has passed away, their relatives may claim compensation for loss of support and compensation for emotional distress.

Can a criminal investigation be opened?

In organ transplantation procedures, criminal investigations may be initiated if death or injury occurs due to illegal organ procurement, organ trafficking, forged consent forms, coercion, transplantation at an unauthorized center, unregistered procedures, violations of brain death procedures, or medical negligence.

Law No. 2238 refers to Article 91 of the Turkish Penal Code in cases of unlawful organ and tissue procurement, sale, purchase, brokering, storage, transportation, transplantation, or advertising for the supply of organs and tissues.

In addition, if serious injury or death occurs due to medical negligence, provisions regarding negligent injury or negligent homicide may also be discussed. Special licensing processes, such as those of a Professional Responsibility Board, may also be considered depending on the specific case, regarding medical procedures and practices of healthcare professionals.

How should evidence be collected?

The evidence gathering process is extremely important in organ transplant cases. Patients or their relatives should not be satisfied with just the medical summary report; they should request copies of all medical records.

The following documents are important from the recipient's perspective: waiting list records, organ allocation records, transplant council decisions, tissue compatibility and cross-matching tests, infection screenings, surgical notes, anesthesia forms, intensive care unit records, laboratory results, drug level monitoring, organ rejection assessments, biopsy reports, consultations, discharge and follow-up records.

In the case of living donors, donor evaluation reports, psychiatric evaluations, consent forms, witness statements, spouse information statement, suitability report, preoperative examinations, surgical notes, complication records, and follow-up documents should also be requested.

In cadaveric organ transplants, brain death certificates, donation declarations, family consent, organ preservation protocols, organ distribution records, and coordination documents are also critical evidence. Law No. 2238 mandates that the death certificate and its annexes be kept for ten years at the relevant healthcare institution.

The Importance of Expert Reports

In organ transplant cases, expert reports determine the outcome of the case. The expert panel should include specialists from general surgery, nephrology, hepatology, cardiovascular surgery, thoracic surgery, cardiology, intensive care, anesthesia, infectious diseases, immunology, tissue typing, forensic medicine, and health management, depending on the organ being transplanted.

The expert must answer the following questions: Was the recipient suitable for transplantation? Was the donor properly evaluated? Was the consent valid and free from coercion? Were the necessary medical examinations performed? Was the organ distribution and registration process compliant with regulations? Was the surgical technique and intensive care monitoring correct? Was the risk of infection or rejection managed promptly? Was there a causal link between the harm and medical malpractice or organizational failure?

Objections should be raised to incomplete expert reports. In particular, general statements such as "organ transplantation is a risky procedure" or "complications have occurred" are insufficient. The report should examine the entire process, from pre-transplant to post-transplant, based on concrete medical records.

Conclusion: The organ transplantation process requires multifaceted legal protection

Organ transplantation is one of the most important medical practices that saves human lives; however, it is also one of the healthcare services that requires the strictest legal, ethical, and medical safeguards. This is because the recipient's right to life, the donor's bodily integrity, the deceased's consent to donate, the sensitivities of the families, the equality of patients on the waiting list, and the public's trust in the organ donation system must all be protected throughout the process.

Organ and tissue trafficking is prohibited under Turkish law; organ harvesting from a living donor is only possible under conditions of age (18), capacity to make reasoned decisions, free and informed consent, medical suitability, and informed knowledge. In the case of organ harvesting from a cadaver, brain death determination, intention to donate, close consent, organ preservation protocols, and registration processes are subject to special rules.

When errors or rights violations occur in the organ transplant process, private hospitals may face legal action under private law and consumer law, while public hospitals may face administrative law and full judicial review proceedings. In cases of serious violations, criminal investigations may be initiated. Success in such cases depends not only on the existence of a negative outcome but also on demonstrating, with concrete evidence, consent, medical suitability, record keeping, organ distribution, surgery, intensive care, infection, rejection follow-up, and causal link.

Therefore, recipients, living donors, or their relatives who experience harm during the organ transplant process should immediately gather all medical records, examine consent and ethics committee documents, check the transplant center's authorization and registration system, determine the correct legal course of action based on whether it's a private or public hospital, and prepare the file in a way that allows for expert review.