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According to the will of the Federal Council and the Federal Assembly, there is to be a change in the system of organ donation1 . Until now, the consent solution has applied, which means that a person can voluntarily register as an organ donor during his or her lifetime. The objection solution is now to apply: Only if each individual deposits his or her express will in a register that he or she does not want to be an organ donor will organs not be removed from him or her after death. In this case, the family should also be involved, this is the so-called extended objection solution.
The amendment to the currently valid Transplantation Act is the indirect counter-proposal to the popular initiative "Promote organ donation - save lives", which was submitted by "Jeune Chambre internationale" in March 2019.2. The referendum period for this indirect counter-proposal currently runs until 20 January 2022.
"Swisstransplant" and the Swiss parliament hope that the change in the law will increase the number of organ donations in Switzerland, an understandable and sensible concern. However, it is initially not clear whether the goal set can be achieved with the change of system, as the Federal Council itself explained in its message on the law3. Much more important, however, is another crucial objection.
In changing the system from the consent solution to the contradiction solution, the state is advocating a serious violation of fundamental rights, the right of the human being to physical integrity4. This fundamental right is no longer unconditionally guaranteed with the amendment of the Transplantation Act, because every individual must first register in a state registry so that no organs are removed from them after their death. Thus, the same paradigm shift is taking place with this amendment to the law as with the Covid-19 law. Only on the condition of vaccination or a negative test does the individual gain access to social life and only on the condition of an explicit declaration of my objection will no organs be removed from me after my death. This means in consequence: fundamental rights no longer apply unconditionally. Thus, as with the pandemic measures, "the paradigm shift "benefit before dignity"" is emerging in state action5.
Of course, the Friends of the Constitution support all efforts to ensure that there are more organ donors in Switzerland. But the decision must remain voluntary and must not be made subject to a condition in order to guarantee my fundamental right to physical integrity.
3 Message on the popular initiative "Promote organ donation - save lives" and on the indirect counter-proposal
(Amendment of the Transplantation Act) of 25 November 2020 / 9557
4 Art. 10 para. 2 BV
5 Ruth Baumann-Hölzle, Human dignity is being undermined, NZZ of 6 October 2021