Presumed Consent, Absent Notice: Russia’s Organ Transplant Law Before the European Court of Human Rights
On October 17, 2017, Pavel Mardari died in a Moscow hospital after five days in a coma following a car accident. His family had visited him daily, brought items from a list the hospital provided, and had been assured just the day before that the doctors were doing everything they could for him. When Pavel died, they learned of it by phone, after the fact—and what they did not learn, not that night and not for more than a year, was that within an hour of his death, surgeons had removed his heart, liver, kidneys, and part of his spleen for transplantation. No one had asked them. No one had told them it was being considered. A forensic report released fourteen months later is how Pavel’s brother found out his organs were gone. He learned the truth, as families in these cases so often do, secondhand: from a document, not a person.
Pavel Mardari’s case is not unique, and that is precisely the point of this piece. It is one of three the European Court of Human Rights (ECtHR) will rule on together on September 3, 2026—alongside Sablina and Others v. Russia, involving a 19-year-old struck by a car in 2014 and whose heart, kidneys, adrenal glands, and portions of her aorta and vena cava were removed without her parents’ knowledge, and Valyushchenko v. Russia, a similar claim brought by a mother over her son’s organs. I have represented the applicant families in all three. All three cases turn on the same feature of Russian law: a 1992 statute that presumes consent to organ removal unless the deceased or their relatives affirmatively objected beforehand—and that, in practice, gives hospitals no obligation to raise the subject at all.
A consistent pattern across three cases
The mechanics in each case are strikingly consistent. A patient arrives with severe trauma and a poor prognosis. Relatives are kept informed about medical treatment—sometimes daily—but are never told their family member is being evaluated as a donor. After death, the family is not notified that organs were removed. In Mardari’s case, hospital staff told his brother the body was in the morgue before it had actually arrived there, and gave him a phone number for a morgue that had no record of his brother at all. The organ removal itself is documented—the certificates and transfer records exist, filed and signed—but the notification to the family does not happen, because Russian law does not require it.
When the Mardari family sued the hospitals involved—Demikhova City Hospital, Botkin City Hospital, and the Shumakov Transplantation Center—in Russian civil court, the trial court closed the hearing to the public at the defendants’ request The Court declined to summon the transplant surgeons as witnesses, and read Article 8 of the Russian law on organ transplantation as imposing no duty on doctors to seek consent. Instead, it placed the burden on families to proactively anticipate the procedure and register their refusal before their relative’s death, entirely on their own initiative. Appeals and two rounds of cassation review left that reading in place. As in Sablina and Valyushchenko, that outcome—reached through the ordinary domestic appellate process, not through any unusual irregularity—is what brought the case to Strasbourg.
Why three cases together?
Bringing related cases in parallel, rather than litigating a single dispute in isolation, is a deliberate strategy. It also happens to be the subject I spent time researching at Harvard Law School in the spring of 2020 when I examined strategic litigation as a tool for systemic legal change, rather than seeking individual redress alone. A single case can be read, not unreasonably, as an unfortunate individual failure—a hospital that should have called, a family that didn’t ask the right question at the right time. Three cases spanning 2014 to 2017, involving different hospitals, different transplant centers, and different regional courts, but raising an identical statutory question and yielding an identical outcome, are much harder to read that way. That was the reasoning behind bringing them together: not to relitigate three deaths, but to put before an international court a pattern spanning multiple institutions and years—a question about a statute, not about any one hospital’s conduct on any given night.
I began working on Mardari v. Russia as a Fulbright Visiting Scholars Program Fellow with Harvard Law School’s Human Rights Program in the winter of 2020, which is where the application to the ECtHR was actually drafted. I have represented the applicants in all three cases since 2013, following them from domestic courtrooms in Moscow, through the full exhaustion of local remedies, to Strasbourg. September 3 is the result of that work—thirteen years of it, on and off—and it is, I think, an instructive example of what strategic litigation can and cannot accomplish when the underlying law itself, and not merely its application in a single unlucky case, is the actual problem.
What is actually being asked
The applicants in all three cases raise overlapping claims under the European Convention on Human Rights. They argue that the covert removal of organs, without any real opportunity for the family to consent or object, violated their right to respect for private and family life under Article 8. They argue that the manner in which they learned what had happened to their relatives’ bodies amounted to degrading treatment under Article 3. They argue that closed hearings, refusals to hear key witnesses, and the domestic courts’ unwillingness to engage substantively with these arguments violated their right to a fair and public hearing under Article 6. Furthermore, in Mardari’s case specifically, they argue that a family’s interest in the disposition of a relative’s body engages the property protections of Protocol No. 1 to the Convention. None of this has yet been decided—that is precisely why September 3 matters. Three chambers of the same Court, presented with the same statutory scheme applied three separate times, will now rule on whether it survives Convention scrutiny.
Where enforcement fails, evidence still works
Organ transplantation law sits at an uncomfortable junction: a genuine public health interest in increasing donation rates is set against an individual and family’s interest in bodily autonomy and informed consent. The Court has already recognized the latter interest, in its 2015 judgment in Elberte v. Latvia, finding that a similar presumed-consent regime—one applied without any real mechanism for objection—violated Article 8. What distinguishes the Russian cases is scale and consistency: three families, three hospitals, three transplant centers, one statute, and, so far, one set of domestic courts that has not required anything more than presumed silence at every level of review. A ruling against Russia in all three would be a meaningful addition to the Court’s organ-donation jurisprudence, and a comparatively rare instance of the Court examining not a single administrative failure but a statutory scheme applied consistently, and upheld consistently, across separate cases and separate courts.
It is also worth being honest about what such a ruling will not do. Russia withdrew from the Council of Europe in 2022, and, under Russian law enacted that same year, does not treat ECtHR judgments issued after March 15, 2022, as binding on Russian courts. Whatever the Court finds on September 3, no Russian hospital will be ordered to change its practice as a direct result, and no Russian family will gain a new domestic remedy because of it. That is a genuinely different question from what the Court itself finds, and it would be a mistake to let the first obscure the second—but it would also be a mistake to conclude that the judgment therefore does nothing.
In my own work, I prepare country-conditions expert reports and testify as an expert witness in U.S. immigration and asylum proceedings, on the specific question of what Russian state and quasi-state institutions actually do, as distinct from what Russian law says they are supposed to do. ECtHR judgments—including ones Russia will never enforce—are frequently part of that evidentiary record. They remain what they have always been: documented, adversarially tested findings by an international tribunal about how a specific institution behaved in a specific case. A judgment holding that Russian hospitals and courts, across three separate proceedings, treated a family’s total exclusion from a decision about their relative’s body as lawful does not need Russian compliance to be useful. It needs only to be accurate. And now, on September 3, if it is to be found so by a court, it becomes a record that fact-finding immigration judges and asylum officers can and do rely on when assessing whether an individual’s account of how Russian institutions treat people is credible.
Dr. Anton Burkov is the founder of the Strategic Litigation Center and a country conditions expert witness on Russia in United States immigration and asylum proceedings. He represents the applicants in Sablina and Others v. Russia, Mardar v. Russia and Valyushchenko v. Russia before the European Court of Human Rights, and is a member of the International Advisory Board of the Human Rights Practice Program. He was a Fulbright Visiting Scholars Program Fellow with the Harvard Law School Human Rights Program in Spring 2020, where he prepared the Mardari application to the ECtHR.
Views expressed on Harvard Human Rights Reflections are those of the individual authors and do not necessarily reflect the opinions or positions of the Human Rights Program or Harvard Law School.
