Judgment of the Federal Social Court on the admission of a cross-over living donation

In a judgment dated 10 December 2003, the Federal Social Court (Bundessozialgericht – BSG) ruled that cross-over living donation shall be, in principle, inadmissible, but that it may be performed in exceptional cases. An exceptional case may occur if donor and recipient stand in a particular personal relationship to each other; these personal ties must be that strong that there is reason to expect the relationship to last for an unlimited period beyond the operation. In the judges’ view, the personal relationship at the time of the operation, as stipulated in § 8 para. 1 clause 2 Transplantation Act (TPG), must be interpreted in a broad sense in the context of cross-over living donations. It shall suffice that the psychologist or physician attending to the patient before transplantation certifies the existence of an adequately intense and firm relationship. However, the mere fact that two couples have only met on the occasion of an intended cross-over transplantation or that a relationship has only been existing for a relatively short period of time, need not a priori represent an argument against the existence of a close relationship. The shared experience of illness may suggest that there is a correspondence of living conditions which may result in the establishment of strong emotional ties. However, since the existence of such a close relationship cannot be taken for granted either, judgment must be made on a case by case basis. 

Bundessozialgericht (BSG) (2004): Urteil vom 10 Dezember 2003. (Judgment of 10 December 2003. Az. B 9 VS 1/01 R) Az. B9 VS 1/01 R. In: Juristenzeitung 2004, 464–469. Online Version (German)

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