ORGAN DONATION AND ALLOCATION I

F. Ambagtsheer¹, A. Rahmel², W. Weimar^1
1Kidney Transplantation, Room D408, Erasmus Medical Center, Rotterdam/NETHERLANDS, ², Eurotransplant, Leiden/NETHERLANDS

Body: Introduction This paper examines the application of the non-discrimination principle to organ transplantation in Europe. It addresses four questions. First, what is the meaning of the right to free movement and the non-discrimination principle under EU Law? Second, what is the practice of restricting non-residents on European organ transplant wait lists? Third, does restricting access to non-residents violate the non-discrimination principle? If so, what are the potential legal consequences? Methods The study was performed by reviewing European legislation and case law on free movement and the prohibition of discrimination. The cross-border movement of organ recipients and restriction of non-residents on European transplant wait lists was examined by reviewing national transplant laws and reports of European organ allocation organisations. Results This study found that although a legal basis for restricting non-residents to transplant wait lists is lacking, limitation of access in practice nevertheless occurs. Despite that EU Member States have a large degree of discretion with regard to health care, their autonomy is constrained by EU Law. Denying non-residents access to organ transplantation in principle violates the prohibition of discrimination under EU Law. It has been argued however that in view of the specific nature of transplantation and the delicate system of waiting lists, it would be wise to consider an exception for organs. The question is whether this exclusion can be justified from the point of view of equal treatment of EU citizens. Without a specific legal framework appropriately addressing this issue, the subject remains open to legal interpretation. Conclusion In the absence of clear-cut rules and case law addressing cross-border movement of EU citizens for organ transplantation, it is recommended that at EU level the legal application of the non-discrimination principle to cross-border organ transplantation is clarified. Insufficient organ supply for residents might justify the restriction of free access to transplant wait lists of non-residents.

Disclosure: All authors have declared no conflicts of interest.