Facts
On 10 April 1969, Albert Gautschi was seriously injured and admitted to the district hospital in Lachen, then transferred on 13 April to the university neurosurgery clinic at the Cantonal Hospital of Zurich, where his death was confirmed on 14 April. Without obtaining the consent of his parents, Paul and Luise Gautschi, Albert Gautschi's heart was removed the same day for transplantation to another patient. The parents then filed an action to establish the unlawfulness of the removal and to claim compensation.Considerations
The Federal Tribunal first examined the issue of the applicable liability for physicians acting in a public hospital. It considered that, insofar as the acts attributed to the physicians were part of the exercise of their official duties, their liability should be assessed according to federal law on the liability of civil servants and not according to private law.
Regarding the parents' rights over the body of their deceased child, the Federal Tribunal ruled that the parents have, under Art. 28 CC, a right to dispose of their child's body, this right stemming from their personal connection to the deceased. When the deceased has not expressed a will regarding the fate of their body, this right belongs primarily to their spouse, failing that to their closest parents. In this case, the Tribunal considered that, as the deceased was separated from his wife, the right to dispose of his body belonged to his parents.
Although the removal of the heart constituted an…