Organ Transplantation

In Austria, organ transplantation is clearly regulated by law: The Organ Transplantation Act (OTPG) forms the legal basis for this. In addition, the Tissue Safety Act (GSG) similarly regulates the retrieval and use of tissues and cells.

Prevention

Recipients, and in the case of living donation, also donors, should address essential matters before organ transplantation:

• Will for regulating the estate
• Enduring Power of Attorney for regulating representation
• Advance Directive for regulating desired treatments
• Funeral Directive for regulating the type of burial

This relieves relatives of difficult decisions in the worst-case scenario.

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Voluntariness and Non-Remuneration

Organ donations must be exclusively voluntary and non-remunerated. Commercial exploitation of organs is prohibited. Organs may therefore not be the subject of profit-oriented legal transactions.

Accordingly, it is prohibited to grant or promise financial or comparable benefits to donors or third parties for the donation of an organ.

All legal transactions that violate these provisions are legally invalid.

Only the reimbursement of expenses directly associated with organ donation is permitted. These include, for example, travel costs, lost earnings, or costs for medical aftercare. These reimbursements are not considered payment and are thus in line with the principle of non-remunerated donation.

This principle aims to ensure that the decision for organ donation is made solely out of altruistic motives, free from financial pressure or economic incentives.

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Living Organ Donation

Living donations are considered a last resort when no suitable organ from a deceased donor is available in time. For living donations, organs such as kidneys, parts of the liver, or in rare cases, lung lobes are particularly suitable, i.e., organs that are either paired or divisible.

Such donations often come from close relatives or people who are particularly emotionally connected to the recipient, such as parents, siblings, or spouses.

Since living donation represents a major medical intervention for a healthy person, particularly strict legal requirements and disclosure obligations apply to living donation.

Legal Age

Living donors must be of legal age and capable of giving consent. Organ donations from minors are expressly prohibited.

Risk Minimization

Before retrieval, a comprehensive medical examination is required to determine whether the donor is physically and psychologically suitable. If there is a significant health risk for the donor, the donation is inadmissible. An intervention may only take place if the risk to the donor is considered medically justifiable and is in reasonable proportion to the expected benefit for the recipient.

Information

The information provided to the potential donor must be thorough, understandable, and given in both oral and written form. The mandatory information to be conveyed includes:

• Purpose and procedure of the planned organ retrieval
• Possible risks and consequences of the intervention
• Necessary examinations before and after retrieval
• Analytical tests to be performed and possible consequences of unusual findings
• Therapeutic goals and potential benefits for the recipient
• Expected chances of success
• Protective measures for the donor and the importance of regular medical follow-up examinations

Waiver of this information is not legally permissible.

Revocable Consent

Only after complete information can the potential donor give their informed, written consent. This consent must be signed and documented. If a person is unable to write, a declaration before three witnesses is required.

Until the intervention, consent can be revoked at any time, without stating reasons, both in writing and orally. A revocation of consent immediately renders any planned organ retrieval inadmissible.

Aftercare

After retrieval, the donor is entitled to comprehensive medical care and aftercare. Retrieval hospitals are obliged to offer a structured aftercare program, which typically includes a check-up after three months and regular follow-up examinations according to an individual aftercare plan.

The costs for preparation, surgery, and aftercare are usually covered by the recipient’s health insurance or the healthcare system, so that the donor incurs no financial disadvantages.

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Organ Transplantation from Deceased Donors

Opt-out System

In Austria, the so-called opt-out system (“Opt-out-Regelung”) has long been in effect. According to this principle, every deceased person is generally considered a potential organ donor, provided they have not explicitly objected during their lifetime.

This concept of presumed consent dates back to a recommendation by the Council of Europe in 1978. The aim of this regulation is to increase the number of organ donations by generally considering all individuals as potential donors, as long as no explicit objection has been documented.

The opt-out regulation is widely accepted in Austria, as it, on the one hand, emphasizes the principle of post-mortem solidarity, but on the other hand, also always allows room for a conscious and personal decision against organ donation.

Objection to Organ Transplantation

An organ retrieval is therefore inadmissible if the doctors have received an objection by which the deceased or their legal representative explicitly refused organ donation before death.

The refusal of organ transplantation can be made by an entry in the Objection Register. For this, the form Organ Donation – Objection/Amendment/Deletion must be completed and sent to the Objection Register.

Hospitals and doctors are obliged to query the Objection Register before organ retrieval. If an entry is found there, no retrieval may take place.

In addition to the official entry in the Objection Register, other forms of objection are also recognized in Austria. For example, a written note carried with personal documents, or an appropriate advance directive, is sufficient. This ensures that the individual’s will is clearly taken into account.

Alternatively, relatives also have the option to lodge an objection after the death of the person concerned, provided they can credibly demonstrate that this corresponds to the deceased’s will.

Authorization for Organ Transplantation

The legal consequence of this opt-out system is clear: If no objection exists, it is permitted to retrieve individual organs from deceased persons in order to save another person’s life or restore their health through transplantation.

Organ retrieval may only be performed in non-profit hospitals that also meet further essential requirements for charitable status.

Before organ retrieval, a physician authorized to practice independently must determine the onset of clinical death (brain death). Brain death is defined as the state of irreversibly ceased overall function of the cerebrum, cerebellum, and brainstem. According to the current state of scientific knowledge, brain death is identical to the individual death of a human being.

This physician must be independent. Therefore, they may neither perform the retrieval nor the transplantation. Furthermore, this physician may not be involved in or affected by the interventions necessary for transplantation in any way. When determining brain death, the physician must adhere to extensive regulations.

The assessment and selection of organs must be carried out in accordance with the state of medical science. Organ retrieval must not result in any disfigurement that offends decency of the corpse.

Priority of Organ Transplantation

The retrieval of organs and organ parts from deceased persons for the purpose of transplantation has priority over the retrieval of cells and tissues for human application. The availability of organs and organ parts from deceased persons for the purpose of transplantation must not be impaired by the retrieval of cells and tissues for human application.

Body Donation

Those who wish to go further can donate their entire body in the form of a body donation to a medical university for the purpose of science and the training of new doctors.

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Liability

The clarification of the liability issue in the event of errors during organ transplantation depends on the nature of the error and who is responsible for it.

Several parties may be liable:

• Hospital: If the error is due to organizational deficiencies, e.g., inadequate hygiene, insufficient information.
• Physicians: If medical malpractice occurs, e.g., incorrect execution of the operation, wrong medication, or insufficient aftercare.
• Coordination body (e.g., Eurotransplant): In rare cases, if an error occurs in organ allocation.

In the event of a faulty organ transplantation, claims for damages may arise for various reasons, including:

• Pain and Suffering: Compensation for physical or emotional distress caused by the error.
• Medical Expenses: Reimbursement of medical treatment costs that became necessary as a result of the error.
• Loss of Earnings: Compensation for lost income if the patient is unable to work due to the error.
• Lump-sum Expenses: Fixed amounts to cover other expenses incurred due to the error.

These claims serve to compensate for the incurred damage as comprehensively as possible.

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Criminal Provisions

Violations of the provisions of the Organ Transplantation Act are prosecuted under administrative criminal law and criminal law. This concerns not only illegal organ retrievals and organ trafficking, but also seemingly minor matters such as violations of mere organizational regulations.

Penalties range from fines to imprisonment.

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