La donación aparente de órganos humanos frente a una finalidad económica: análisis jurídico, económico y propuesta regulatoria

Abstract

This article addresses the crisis regarding organ and tissue donation in Peru—a problem stemming from the limited availability of donors relative to the growing number of people requiring transplants. The situation is further complicated when an apparent donation masks an underlying economic motive, creating tension between protecting a person's inherent dignity and integrity and the need to increase organ availability.
The study aimed to analyze the legal treatment of situations where a donation is accompanied by an economic purpose, considering the limits established by the Peruvian legal system—such as the concept of legal simulation, organ scarcity, and regulatory possibilities.
The research employed a qualitative approach and a legal-dogmatic methodology, utilizing analytical and exegetical methods based on an analysis of civil regulations, legal doctrine, and both special and comparative legislation. The results indicate that human organs and tissues—due to their unique nature linked to personal dignity and integrity—are excluded from commercial exchange, and their commodification cannot be legally sanctioned.
Similarly, the concept of relative simulation allows for distinguishing between the apparent act and the actual underlying purpose; however, it does not constitute grounds for invalidity, as the concealed act must comply with the law, reflecting the legal impossibility of generating effects typical of a commercial transaction.
Finally, economic and comparative analysis highlights the need to strengthen altruistic donation within the system and to establish mechanisms for covering donation-related expenses under health authority oversight, ensuring these do not become a form of payment for the organ itself.