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.