1Der Bund erlässt Vorschriften auf dem Gebiet der Transplantation von Organen, Geweben und Zellen. Er sorgt dabei für den Schutz der Menschenwürde, der Persönlichkeit und der Gesundheit.
2Er legt insbesondere Kriterien für eine gerechte Zuteilung von Organen fest.
3Die Spende von menschlichen Organen, Geweben und Zellen ist unentgeltlich. Der Handel mit menschlichen Organen ist verboten.
Art. 119a BV – Transplantation medicine
#Overview
Art. 119a BV regulates transplantation medicine (transfer of organs). The Confederation must protect human dignity, personality and health. Organs must be distributed fairly. Trade in organs is prohibited.
The provision affects all persons: organ donors, recipients and their families. Doctors and hospitals must follow strict rules. The Transplantation Act (TxA) concretizes the constitutional provision.
Organ donation is voluntary and free of charge. No one may receive money for their organs. Distribution takes place according to medical criteria such as urgency and prospects of success. Waiting lists are maintained by transplantation centres.
A central point of dispute concerns the time of death. Proponents of the brain death concept see death as a biological event when all critical functions fail irreversibly (Belser/Molinari, BSK BV, Art. 119a N. 60). Critics such as Becchi object that the brain death concept serves unilaterally the purpose of early organ removal (Bondolfi/Kostka/Seelmann, Organallokation, 2004). The autonomy-based concept of death requires explicit consent to organ removal from brain death.
Fair organ distribution requires, according to Sitter-Liver, equal treatment of all patients, medical criteria as the primary basis for decision-making and transparency of the procedure (Gerechte Organallokation, 2003). Schott emphasizes the development of clear selection criteria for patients (Patientenauswahl und Organallokation, 2001).
Legally, the constitutional provision strengthens the right to self-determination. Everyone can decide during their lifetime whether they want to donate organs after their death. The organ donor register documents this will. No organs may be removed without consent.
Example: Maria suffers a stroke. In the hospital it turns out that she is brain dead, but her organs are functional. The doctors check the organ donor register and question the family. Only with documented or presumed consent can her organs save the lives of other patients.
Art. 119a FC – Transplantation Medicine
#Doctrine
#1. Legislative History
N. 1 Art. 119a FC traces back to the constitutional article on transplantation medicine developed by the Federal Council and Parliament in the course of the then-ongoing process of constitutional revision. Its predecessor was Art. 24decies of the former Federal Constitution (aFC), adopted by the people and the cantons on 7 February 1999 and carried over as Art. 119a FC upon the entry into force of the totally revised Federal Constitution on 1 January 2000 (AS 1999 1341; JAAC 68.113, para. 2.1).
N. 2 The impetus for the constitutional article was two motions from 1994 (Motion Onken, 94.3052; Motion Huber, 93.3573) calling on the Federal Council to draft constitutional and legislative foundations for transplantation medicine. Previously, the cantons had regulated the field inconsistently and with significant gaps. The Federal Supreme Court held expressly in the then-landmark BGE 123 I 112 c. 3 that, in the absence of federal legislation, the cantons retained legislative competence. The cantons, in turn, expressed support — through the Conference of Cantonal Directors of Health on 9 December 1994 — for a federal-level solution (cf. BGE 123 I 112 c. 6).
N. 3 On 23 April 1997 the Federal Council adopted the Dispatch on a constitutional provision on transplantation medicine (BBl 1997 III 627 ff.). It proposed therein the competence basis for the Confederation (para. 1), the requirement of equitable organ allocation (para. 2), and the principle of gratuitousness for organ donations (para. 3 first sentence). Parliament, on the initiative of the preparatory committees, supplemented the Federal Council's draft by adding an express prohibition on trade in human organs as a second sentence of para. 3 (AB 1997 N 2419, 2426; JAAC 68.113, para. 2.1, fn. 9); the Federal Council in its Dispatch had confined itself to the requirement of gratuitousness (BBl 1997 III 696).
N. 4 On the basis of Art. 119a para. 1 FC, the federal legislature enacted the Federal Act on the Transplantation of Organs, Tissues and Cells (Transplantation Act, TxA; SR 810.21), which entered into force on 1 July 2007. The TxA superseded the Federal Decree on the Control of Transplants of 22 March 1996 (SR 818.111) and gives legislative effect to all three paragraphs of Art. 119a FC.
N. 5 A popular initiative aimed at introducing the extended opt-out model («Promoting organ donation — Saving lives») was submitted in 2018. The Federal Council initially proposed a direct counter-proposal at the legislative level; Parliament ultimately incorporated the opt-out model into the TxA (2022 revision, in force since 1 July 2023), and the initiative was withdrawn. The popular vote on the constitutional article itself did not take place. The legislative revision gives further effect to Art. 119a paras. 1 and 3 FC without amending the constitutional text.
#2. Systematic Classification
N. 6 Art. 119a FC is a competence norm with substantive constraints. It confers on the Confederation exclusive legislative competence in the field of transplantation medicine (para. 1 first sentence) while simultaneously committing it to substantive principles (human dignity, personality, health; para. 1 second sentence), equitable organ allocation (para. 2), and gratuitousness and the prohibition of trade (para. 3). Art. 119a FC thus combines an allocation-of-competence norm with normative minimum content (Schweizer/Schott, St. Gallen Commentary, 4th ed. 2023, Art. 119a N. 1–3).
N. 7 The provision is located in Chapter 8 («Education, Research and Culture»), Section 7 («Medicine»). It is systematically placed alongside Art. 119 FC (reproductive medicine and gene technology in the human sphere). The prohibition of trade in Art. 119a para. 3 sentence 2 FC is substantively related to the prohibition of trade in products derived from embryos in Art. 119 para. 2 let. e FC; both prohibitions are, according to Schweizer/Schott, St. Gallen Commentary, Art. 119a N. 26, sufficiently determinate for direct application by authorities and courts.
N. 8 Art. 119a FC is not a fundamental rights provision; it does not create subjective rights to transplantation or to organ supply. The relevant fundamental rights are personal liberty (→ Art. 10 para. 2 FC), human dignity (→ Art. 7 FC), and the general procedural guarantees (→ Art. 29 FC). The principle of proportionality (→ Art. 5 para. 2 FC; → Art. 36 FC) applies to all state restrictions on the freedoms connected with transplantation. Arts. 3 and 8 ECHR and Art. 21 of the Convention on Human Rights and Biomedicine (Biomedicine Convention; SR 0.810.20) form the relevant framework under international law.
N. 9 Art. 49 para. 1 FC precludes cantonal regulations in the field of transplantation medicine since the entry into force of the TxA, to the extent that the Confederation has conclusively regulated the subject matter (→ Art. 49 FC). In particular, the cantonal laws on organ removal and transplantation that had previously subsisted on the basis of BGE 123 I 112 have been abrogated by the TxA.
#3. Elements / Normative Content
3.1 Legislative Mandate and Protective Principles (Para. 1)
N. 10 Art. 119a para. 1 sentence 1 FC confers on the Confederation a mandatory legislative mandate across the entire field of transplantation of organs, tissues and cells. «Organ» is to be interpreted broadly and encompasses both vital and devitalised implants, standardised transplant products, as well as tissues and cells (Dispatch Art. 119a FC, BBl 1997 III 678; JAAC 68.113, para. 5.2).
N. 11 Art. 119a para. 1 sentence 2 FC names three protected interests: human dignity, personality, and health. According to the Federal Council's Dispatch, the constitutional legislator had in mind primarily respect for human dignity in connection with organ removal from deceased persons, the determination of the time of death, and the right to a dignified death (BBl 1997 III 679; JAAC 68.113, para. 3.1 in fine). Protection of personality encompasses, according to BGE 123 I 112 c. 4b, every person's right to determine the fate of their body after death («le droit de déterminer le sort de sa dépouille après sa mort»). The Federal Supreme Court had already recognised this right in BGE 98 Ia 508 c. 8b as an element of personal liberty.
N. 12 According to the analysis of the Federal Office of Justice (JAAC 68.113, para. 3.1), the constitutional article contains no independent protective dimension of human dignity in the sense of shielding the person from commodification as such. The primary protective aims are life and physical integrity of donors and recipients as well as post-mortem protection of personality.
3.2 Equitable Organ Allocation (Para. 2)
N. 13 Art. 119a para. 2 FC obliges the Confederation to establish criteria for equitable allocation of organs. Equitable allocation means, according to the Dispatch, that organ allocation is based exclusively on objective criteria; the decisive factors are in particular the prospects of medical success and urgency (BBl 1997 III 685; JAAC 68.113, para. 3.5). The federal legislature has implemented this mandate in Arts. 17–22 TxA; Swisstransplant maintains the waiting lists and coordinates allocation as the national allocation body.
N. 14 Para. 2 is designed, according to Schweizer/Schott, St. Gallen Commentary, Art. 119a N. 20, to ensure equal treatment of all patients regardless of financial standing or social criteria (↔ Art. 8 FC). It is addressed exclusively to the legislature and does not create a subjective right of the individual to be placed on a waiting list or to receive an organ. The implementation through the TxA is, however, subject to review of proportionality by the Federal Administrative Court (→ Art. 5 FC; FAC C-4780/2019 of 1 March 2021).
3.3 Gratuitousness and Prohibition of Trade (Para. 3)
N. 15 Art. 119a para. 3 FC contains two distinct prohibitions:
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Principle of gratuitousness (sentence 1): The donation of organs, tissues and cells is gratuitous. The prohibition applies, according to the Federal Office of Justice (JAAC 68.113, para. 5.1), to any direct pecuniary consideration for the donation itself. It does not cover compensation for loss of earnings, directly incurred expenses and damage suffered by the donating person, nor subsequent symbolic expressions of gratitude (Dispatch Art. 119a FC, BBl 1997 III 682; Art. 6 para. 2 TxA).
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Prohibition of trade (sentence 2): Trade in human organs is prohibited. This prohibition is — deliberately — confined to organs and does not extend to tissues and cells (Council of States Debates 1998 AB S 627, statement of Rochat: «Cette différence organes/tissus/cellules n'est pas une faute de style, ni une habileté juridique»). All transactions aimed at material gain in respect of human organs are prohibited (JAAC 68.113, para. 5.2). Reimbursement of expenses for removal, transport, processing, storage and implantation is not covered by the prohibition (Dispatch Art. 119a FC, BBl 1997 III 682).
N. 16 The principle of gratuitousness and the prohibition of trade must, according to the Federal Office of Justice (JAAC 68.113, para. 6.2c), be qualified as «lois d'application immédiate» within the meaning of Art. 18 PILA and form part of Swiss public policy (ordre public). They constitute directly applicable constitutional law (Schweizer/Schott, St. Gallen Commentary, Art. 119a N. 26).
N. 17 The principle of gratuitousness also applies to donations for research purposes in the field of transplantation medicine, and not only to donations for transplantation in the narrower sense (JAAC 68.113, para. 6.1b). Protection of potential donors against self-endangerment of their physical integrity justifies this broad interpretation (JAAC 68.113, para. 3.3).
#4. Legal Consequences
N. 18 Violations of Art. 119a para. 3 FC (prohibition of trade, principle of gratuitousness) are subject to criminal penalties at the legislative level under Arts. 69 f. TxA. Legal transactions that contravene the prohibition of trade are void under Art. 20 CO (Belser/Molinari, BSK FC, Art. 119a N. 65).
N. 19 Art. 119a para. 1 FC binds the Confederation as a legislative mandate: if the Confederation were to remain inactive, a failure to legislate could be challenged. Since the entry into force of the TxA in 2007 that mandate has been fulfilled; ongoing legislative revision (e.g. the opt-out model 2023) gives it further concrete expression.
N. 20 Art. 119a para. 2 FC imposes on the legislature a duty to establish equitable allocation criteria, but does not create an individually enforceable right of patients to organ allocation. Procedural rights in decisions on placement on waiting lists must be protected under Art. 29 FC; the Federal Administrative Court sets aside insufficiently reasoned refusals (FAC C-4780/2019 of 1 March 2021; FAC C-3092/2022 of 1 December 2023).
N. 21 Compulsory health insurance (CHI) is obliged to cover the costs of organ transplantations where the conditions of Art. 32 para. 1 HIA (effectiveness, appropriateness, cost-effectiveness) are satisfied. The Federal Supreme Court has confirmed this for heart transplantations (BGE 114 V 258) and living-donor liver transplantations (BGE 131 V 338 c. 7).
#5. Disputed Questions
5.1 Brain Death as the Constitutionally Relevant Time of Death
N. 22 Art. 119a para. 1 FC implicitly presupposes the possibility of organ transplantation from deceased persons, but does not regulate the time of death. The Federal Supreme Court held in BGE 98 Ia 508 c. 4 that, as a matter of constitutional law, brain death (complete and irreversible cessation of all brain functions) can only be regarded as established if it is certain that the resulting condition is irreversible. The authority of federal law to issue directives on the determination of death has since rested with the Swiss Academy of Medical Sciences (SAMS), whose guidelines the Federal Supreme Court in BGE 123 I 112 c. 7 qualified as a sufficiently clear statutory basis.
N. 23 In legal scholarship, there is a dispute about the normative significance of the brain-death concept. Belser/Molinari, BSK FC, Art. 119a N. 60, support the brain-death concept as a biological-empirical phenomenon of the irreversible cessation of all critical vital functions. By contrast, Bondolfi/Kostka/Seelmann (Organ Allocation, 2004, pp. 45 ff.) and — in the bioethical debate — Becchi take the position that the brain-death concept was developed primarily as an instrumental notion for the purpose of organ removal and is therefore not necessarily to be equated normatively with the end of life. This minority view influences the legal assessment insofar as it argues for a heightened state duty of protection and a strict consent requirement.
5.2 Opt-Out Model versus Opt-In Model
N. 24 Art. 119a FC does not conclusively determine the choice between the opt-out model (organ removal permitted unless express objection has been registered) and the opt-in model (organ removal only with express consent). The Federal Supreme Court held in BGE 98 Ia 508 c. 8c and BGE 123 I 112 c. 9b that the opt-out model is compatible with the Constitution, provided that the right to self-determination is safeguarded by an adequate policy of public information. The opt-in model is likewise compatible with the Constitution and affords stronger protection to the right to self-determination.
N. 25 Schweizer/Schott, St. Gallen Commentary, Art. 119a N. 15, acknowledge the constitutional compatibility of the opt-out model, but emphasise — on the basis of BGE 123 I 112 c. 9e — the constitutional duty of comprehensive public information as a necessary condition. If such an information policy is lacking, the opt-out model loses its proportionality according to the Federal Supreme Court. The legislature introduced the «extended opt-out model» through the 2023 TxA revision (Arts. 8 ff. TxA as amended), under which the wishes of the deceased person are primarily determinative and — in the absence of a personal declaration — the next of kin are consulted. This solution operates within the framework established by the Federal Constitution.
5.3 Protective Scope of the Prohibition of Trade and Social Justice
N. 26 Aubert (Petit commentaire de la Constitution fédérale, Art. 119a N. 9) and Dumoulin (Organ Transplantation in Switzerland, 1998, p. 81) regard the prohibition of trade also as an instrument for safeguarding social justice, since an organ market would impede access for financially weaker patients. The Federal Office of Justice (JAAC 68.113, para. 3.5) rejects socio-political motives as an independent protective purpose of Art. 119a para. 3 FC: equitable allocation is the autonomous concern of para. 2; the prohibition of trade protects primarily the life and integrity of donors and recipients. This interpretation of the Dispatch (BBl 1997 III 685) is the more persuasive one, since the parliamentary materials provide no evidence of socio-political motivation for the prohibition of trade.
5.4 Human Dignity as an Independent Protected Interest
N. 27 One strand of legal scholarship — notably Reusser/Schweizer, St. Gallen Commentary, Art. 119 N. 33, and Schweizer/Schott, Art. 119a N. 27 — qualifies human dignity as an independent protected interest underlying the prohibition of trade and the principle of gratuitousness. The Federal Office of Justice (JAAC 68.113, para. 3.1) denies this for Art. 119a para. 3 FC: protection of human dignity cannot independently extend, in the context of Art. 119a, beyond the protection of personality guaranteed by Art. 10 FC. The Federal Office relies on systematic considerations (the prohibition of trade covering organs only, not tissues and cells) and on the individual-protective character of human dignity as a fundamental right (Art. 7 FC). The question remains contested in the literature, but has little practical effect, since the competing protected interests — personality and health — yield the same outcomes.
#6. Practical Notes
N. 28 Scope of application of the TxA: The TxA implements Art. 119a FC at the legislative level. Courts, authorities and transplantation centres must interpret the TxA in conformity with the Constitution, with the protected interests of human dignity, personality and health (para. 1) serving as the interpretive standard (Schweizer/Schott, St. Gallen Commentary, Art. 119a N. 6).
N. 29 Waiting lists and procedural rights: Decisions on placement on transplantation waiting lists or refusals thereof constitute rulings within the meaning of Art. 5 APA and are appealable to the Federal Administrative Court (Arts. 29 ff. FC; FAC C-4780/2019 of 1 March 2021). The transplantation centre must provide reasons for a refusal; an insufficient statement of reasons violates Art. 29 para. 2 FC.
N. 30 Coverage by compulsory health insurance: Transplantations are covered by compulsory health insurance provided they meet the criteria of Art. 32 para. 1 HIA. The duty to provide benefits encompasses, according to BGE 131 V 338 c. 7, living-donor liver transplantations, and according to judgment 9C_121/2024 of 23 June 2025 also long-term consequential costs and compensation for loss of earnings for organ recipients.
N. 31 Prohibition of trade in practice: The prohibition of trade (Art. 7 TxA) and the principle of gratuitousness (Art. 6 TxA) are directly applicable as part of public policy (ordre public) under Art. 18 PILA and preclude the application of foreign law permitting trade in organs (JAAC 68.113, para. 6.2c). Reimbursement of expenses for removal, transport, processing and implantation is permissible; pecuniary consideration for the donation itself is prohibited.
N. 32 Data protection: Medical data relating to organ and tissue donation and to the National Organ Donor Registry (NOSR) are subject to the FADP and the special provisions of the TxA (Art. 57 TxA). The Federal Data Protection and Information Commissioner (FDPIC) issued recommendations on the security of the donor registry in the final report of 17 June 2022 (FDPIC investigation NOSR), which were largely accepted by Swisstransplant.
N. 33 ECHR references: Art. 8 ECHR (right to respect for private life) protects the right to self-determination over one's own body and its post-mortem implications. The Federal Supreme Court already referred in BGE 123 I 112 c. 4d to Arts. 2 and 8 ECHR as interpretive standards. Art. 21 of the Biomedicine Convention gives concrete expression to the prohibition on financial gain from the human body and is consistent with Art. 119a para. 3 FC (BBl 2002 323; JAAC 68.113, para. 5.2 in fine).
Case Law
#Principles of Organ Transplantation Prior to the Enactment of the Transplantation Act
BGE 123 I 112 (16 April 1997)
Prior to the enactment of the Transplantation Act, the Federal Supreme Court examined the constitutionality of the Geneva Act on Organ Removal and Transplantation in abstract judicial review proceedings. The Geneva Act was the first canton to introduce the system of presumed consent (opt-out solution). The judgment developed the constitutional foundations for transplantation medicine.
«The scope of personal liberty in the field of organ transplantation; the constitutional guarantee of personal liberty is not limited to the duration of individuals' lives. It extends its effects, to a certain extent, beyond death. From a constitutional perspective, the deceased must be considered as the primary holder of rights protecting their remains against violations contrary to morals and customs. Every person thus has the right to determine the fate of their remains after death.»
BGE 114 V 258 (22 November 1988)
Groundbreaking decision on cost coverage for organ transplantations by health insurance. The Federal Supreme Court affirmed the duty of health insurance funds to cover the costs of a heart transplantation as a mandatory benefit under the former KUVG. The decision established transplantations as a recognised medical treatment method.
«Health insurance funds must cover the costs necessary for a heart transplantation as mandatory benefits. Health insurance funds are obliged to cover, as mandatory benefits, the costs necessitated by a heart transplantation.»
#Cost Coverage by Health Insurance
BGE 131 V 338 (30 June 2005)
Clarification of cost coverage for liver transplantations from living donors under the HIA. The Federal Supreme Court confirmed that mandatory health care insurance is also obliged to cover costs for living donations when the statutory requirements are met.
«Mandatory health care insurance must cover the costs of a living liver transplantation. Mandatory health care insurance must cover liver transplantation from a living donor.»
#Procedural Law and Patient Rights
C-4780/2019 (1 March 2021) – Federal Administrative Court
Landmark decision on admission to waiting lists for re-transplantations. A patient with severe disability following lung transplantation fought for admission to the waiting list for a second transplantation. The Federal Administrative Court overturned the refusal and specified the procedural rights of transplantation patients.
C-3092/2022 (1 December 2023) – Federal Administrative Court
Further development of case law on admission procedures for waiting lists. The court emphasised the importance of individual examination and appropriate procedural guarantees in decisions regarding admission to transplantation waiting lists.
C-2635/2021 (7 March 2022) – Federal Administrative Court
The Federal Administrative Court specified further procedural requirements for admission to transplantation waiting lists and strengthened the legal position of patients vis-à-vis transplantation centres.
#Data Protection and Transparency
C-90/2013 (18 January 2013) – Federal Administrative Court
Landmark judgment on denial of justice complaints in the transplantation field. A widower fought for access to information about the medical circumstances that led to his deceased wife's unsuitability as an organ donor. The judgment addresses the balance between transparency and medical professional secrecy.
#Criminal Law and Organ Trafficking
BES.2020.106 (7 May 2018) – Court of Appeal Basel-Stadt
Criminal proceedings on suspicion of violations of the Transplantation Act. The court dealt with allegations of illegal organ removal and specified the criminal protection provisions of the Transplantation Act. The proceedings were ultimately discontinued.
BES.2018.93 (7 May 2018) – Court of Appeal Basel-Stadt
Further case on criminal aspects of organ transplantation. The court examined suspicion of unlawful organ removal and emphasised the importance of informed consent as a central protection provision.
#Current Developments
9C_121/2024 (23 June 2025) – Federal Supreme Court
Most recent decision on health insurance in the transplantation field. The Federal Supreme Court dealt with complex questions of cost coverage for long-term follow-up costs of organ transplantations and loss of earnings compensation for organ recipients.