the legal perspective on the immoral demand and supply of organs conny rijken tilburg law school

The legal perspective on the immoral demand and

supply of organs

Conny Rijken

Tilburg Law School

Terminology

• Trafficking or trade in organs

• Never allowed for financial gain (except for Iran)

Article 21 – Prohibition of financial gain

The human body and its parts shall not, as such, give rise to financial gain.

• Trafficking in human beings for the removal of organs

• Criminal act per se

• Many countries lack (sufficient) legislation

Trafficking or trade in organs

• Can be legal

• But illegal:

• By way of trading the organ, or

• By way of obtaining the organ

• The latter case can be trafficking in human beings for the removal of organs

THB for the removal of organs

• Included in the Palermo Protocol

• In short: recruitment or transfer by means of force for the purpose of exploitation

• Exploitation includes the removal of organs

• Note: not the forced removal

Example given by COFS Egypt

Coalition for Organ Failure Solutions researched organ trafficking in Egypt from Sudanese migrants.

Three froms:

- Induced consent

- Coercion for removing organs

- Outright theft

Paid donorship

• Prohibited f.i. by CoE Convention on Human Rights and Biomedicine and EU Charter on fundamental rights

• Pro´s: increase donors, ultimate expression of right to freedom and self-determination

• Con´s: vulnerable for illegal and criminal practices, and affects most vulnerable in society, diminishes voluntary non-paid donorship

Negative consequences of paid donorship• Research in Pakistan: donors are those living in serfdom and debt

bondage with Zamindars (landowners)

• Research in India and Iran shows that marginalised people will more easily donate

• Health consequences of donations underestimated

Parallel with prostitution laws in the Netherlands• Right to self-determination of the individual, right to freedom, agency

of women, right to work

• Practice: difficult to distinguish voluntary from forced prostitution and organ donation

• Can people take a well informed balanced decision? Can we expect them to be able to?

Conclusion

Trade in organs and paid organ donorship is a risky business, difficult to distinguish from criminal practices such as trafficking in human beings for the removal of organs, but certainly vulnerable for such practices.