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5 J.L. & Biosciences 1 (2018)

handle is hein.journals/jlbsc5 and id is 1 raw text is: Journal of Law and the Biosciences, 1-34 § doi:10.1093/jlb/lsx040 Advance Access Publication 21 December 2017 - Original Article A critique of national solidarity in transnational organ sharing in Europe Konstantin Tretyakov* Harvard Law School, Cambridge, MA 02138, USA Corresponding author. E-mail: ktretyakovpsjd.law.harvard.edu ABSTRACT In this article, I critically examine the principle of national solidarity in or- gan sharing across national borders. More specifically, I analyse the policy foundations ofsolidarity in the transnational allocation of organs and its im- plementation in the system of national balance points adopted in Europe. I argue that the system of national balance points is based on statist collec- tivism and therefore is oriented more toward collective, rather than individ- ual welfare. The same collective welfare rationale is also evident from lead- ing policy statements about self-sufficiency in organ donation that seem to assume that cross-border organ sharing can be wrong if collective welfare is violated. This collectivist system of organ sharing can produce unjust results to individual candidates for organ transplantation. I propose several mea- sures to reform the existing solidarity-based framework for the procurement and allocation of organs in order to balance the collective and the individual welfare of the donors and recipients of organs. I also discuss the implications of adopting that proposal. KEYWORDS: organ transplantation, national solidarity, collectivism, indi- vidual welfare, Eurotransplant, Scanditransplant *Konstantin Tretyakov is an S.J.D. graduate of Harvard Law School, where he has recently defended a disser- tation on the right to die and organ transplantation in China and the USA. He is also interested in different topics in political and moral philosophy and bioethics, such as theories of global justice, personal identity, and legal fictions in bioethics. Before joining Harvard, Konstantin practiced law for 6 years in Russia; he also holds an LL.B. degree and a Ph.D. in Law degree from Moscow State Institute of International Relations (Russia). Konstantin currently serves as a law clerk at the Massachusetts Appeals Court. © The Author(s) 2017. Published by Oxford University Press on behalf of Duke University School of Law, Harvard Law School, Oxford University Press, and Stanford Law School. This is an Open Access ar- ticle distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs licence (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial reproduction and distri- bution of the work, in any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. For commercial re-use, please contact journals.permissionspoup.com

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