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New Cannibal Markets

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Jean-Daniel Rainhorn
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Samira El Boudamoussi

Part 7. Mapping National and International Responses

Limiting Commodification: International Law and Its Challenges

Carmel Shalev

Texte intégral

1In recent years a wide variety of transnational medical practices have emerged to create markets in human beings, as well as body parts and substances, for medical uses. These practices include inter alia trafficking in human beings for the purpose of the removal of organs, organ transplant tourism, cross-border third-party reproduction (gamete donations, surrogate-mother arrangements, and transfer of human embryos), and bioproducts of human origin (tissues, cells and blood). All together these seem to indicate a de facto erosion of the accepted principle of non-commercialization of the human body and its parts. However, each practice poses singular ethical, legal, and regulatory challenges.

2In the most general terms, the legal and regulatory aspects of the market in human bodies, body parts, and body substances can be classified under four distinct categories: (1) standards of professional conduct that guarantee the efficacy, quality, and safety of medical services and products; (2) rules of distributive justice that govern the allocation of limited medical resources, services and products, and provide for their availability and accessibility; (3) principles of human-rights that are based on respect for all persons and aim to protect them against abuse, especially in conditions of vulnerability; and last but not least (4) issues of criminal justice. While it is often difficult to address one aspect without addressing the others, it is safe to say that markets in human body parts, as distinct from other medical practices, raise issues that pertain mainly to the latter two categories.

3This paper describes the key issues of concern and the major international legal instruments and guidelines that have emerged in response to the various challenges posed by the different medical market practices. It appears that there is broad agreement on the normative framework—the general principles and rules—in the area of organ transplants, which received significant attention both as a matter of professional self-governance and in the literature, and has been included within the scope of the international law on trafficking in human beings. Human tissue and cell transplants have also been the subject of regulation and debate, most markedly in Europe, at least in respect of quality and safety, although there the consensus is less comprehensive. However, the complex issues of transnational medically assisted reproduction (MAR) have largely been neglected. Cross-border third-party-reproduction practices raise singular and complex issues in respect of the rights of the children, which are beginning to be acknowledged and addressed. But the vulnerability of the involved adults, and particularly the women, to human-rights violations and to exploitation, coercion and deception require urgent attention. In this area there is a glaring lack of regulation and a dire need for discussion and deliberation.

The paramount principle

4The phenomena associated with markets in human beings, body parts, and body substances for medical uses are offshoots of legitimate medical practices, which depart from a longstanding ethical consensus against the buying and selling of human bodies and body parts. The moral pillars of economic markets are the freedom of the individual to enter into agreements with other free individuals. But there are intrinsic limits to the principle of individual freedom. The principle of liberty according to John Stuart Mill is the right of mature rational individuals to choose voluntarily any course of action, so long as it does not cause harm to others. But personal liberty does not extend to the right of an individual to sell oneself into slavery (Stuart Mill 1859). In this sense liberty is inalienable, and one may not enter into a contract to relinquish it. Such a contract would be considered immoral and hence invalid. The principle that human beings and bodies are not for sale was the rationale underlying the abolition of slavery in the Slavery Convention (League of Nations 1926).

  • 1 The European Convention on Biomedicine and Human-Rights (Council of Europe 1997), prohibits financ (...)

5In international medical law and ethics, too, the prohibition against commercializing the human body is a well-established principle.1 It was first stated in Guiding Principle 5 of the WHO Guiding Principles on Organ Transplantation (WHO 1991) as follows:

“The human body and its parts cannot be the subject of commercial transactions. Accordingly, giving or receiving payment (including any other compensation or reward) for organs should be prohibited.”

6The same rule, that organ donation must be voluntary and unpaid, appears again in the revised 2010 version of the WHO guidelines, which extended the prohibition of monetary reward to include human cells and tissues (WHO 2010). The revised Guiding Principles were endorsed by the World Health Assembly, which condemned the buying of human body parts for transplantation, and urged member states to promote “altruistic voluntary non-remunerated donation of cells, tissues and organs” and to oppose “the seeking of financial gain or comparable advantage in transactions involving human body parts, organ trafficking and transplant tourism” (World Health Assembly 2010).

7However, at the same time, the principle of non-commercialization has been somewhat tempered by allowing for the payment of compensation for expenses and loss of income incurred in donation. The current version of Guiding Principle 5 provides that cells, tissues, and organs should only be donated freely, without any reward of monetary value, but goes on to say:

“The prohibition on sale or purchase of cells, tissues and organs does not preclude reimbursing reasonable and verifiable expenses incurred by the donor, including loss of income, or paying the costs of recovering, processing, preserving and supplying human cells, tissues or organs for transplantation.”

8In other words, while financial gain should not be an incentive to donate organs, tissues or cells, financial loss should not be a disincentive that discourages individuals from doing so.

International regulation

Clinical standards: quality, safety and efficacy

9The WHO Guiding Principles signify the leading role that professional organizations took in the international regulation of organ transplantations. As a matter of self-governance, professional standards of practice integrated concerns for clinical quality, safety, and efficacy with ethical principles. In addition to the principle of voluntary altruistic donations, the current normative consensus includes an ethical preference for donations from deceased persons, or from related live donors. There is also agreement about the need for transparent and equitable allocation of organs, cells and tissues, guided by clinical criteria, to allay concerns about distributive justice. Issues of quality, safety, and efficacy are addressed with two key mechanisms: first, post-transplantation surveillance of adverse events; and second, the traceability of materials of human origin for transplantation at both national and international levels (WHO 2010; WMA 2000, 2006; Council of Europe 2002; EU 2010).

Trafficking in human beings for organ removal

10However, the emergence of transnational markets for organ transplants raised additional concerns about human-rights violations and criminal practices, which resulted in another layer of international regulation within the framework of the prohibition of slavery and trafficking in human beings. “Human trafficking” in the sense of the appropriation and control of persons as property or commodities is seen as a contemporary form of slavery. The most important international instrument in this respect is the UN Trafficking in Persons (Palermo) Protocol (UN 2000b), which was adopted as an addendum to the Convention against Transnational Organized Crime (UN 2000a). The focus of the definition of human trafficking in the Palermo Protocol is on elements of coercion, deception and exploitation. And although it addresses mainly sex work and forced labor, especially as regards women and children, it also encompasses trafficking for the purpose of the removal of organs for transplantation.

  • 2 For example, the Optional Protocol to the Convention on the Rights of the Child on the sale of chi (...)

11This and other international legal instruments that prohibit trafficking in human beings for the purpose of organ removal2 constitute an internationally recognized body of human-rights-based law. The objective of international law is to prevent the human-rights violations associated with trafficking in human beings for the purpose of removing organs, to prosecute and punish traffickers, and to provide for the physical, psychological, and social recovery of victims. The view is that effective action requires a comprehensive international approach in countries of origin, transit and destination, with criminalization of forbidden practices, regardless of the victim’s apparent consent.

12Nonetheless, trafficking in human beings for the purpose of organ removal remains a marginal issue relative to the major focus of international law on sexual exploitation and servitude of women and children. What is more, the relevant legal instruments do not address certain issues that relate distinctly to trafficking in organs as such (rather than in human beings).

Trafficking in organs, tissues, and cells

13“Trafficking in organs, tissues, and cells” and “trafficking in human beings for the purpose of the removal of organs” are considered to be two different phenomena and to constitute two different crimes, because the trafficked objects are different. In the one case organs, tissues, and cells are trafficked; in the other, persons. Trafficking in organs does not necessarily involve the cross-border movement of coerced, deceived, or exploited persons. Organs can be removed from a donor in one country and transferred to another for transplant in a recipient. Or the recipient can be the person who travels freely to the country where the donor is located. Although trafficking in human beings for the purpose of organ removal is covered by the general international instruments on trafficking in human beings, it is a small part of the larger problem of trafficking in organs, tissues, and cells, which is not governed by any legally binding international instrument (Council of Europe and UN 2009).

  • 3 The General Assembly expressed alarm at “the potential growth of exploitation by criminal groups o (...)

14Concern about practices of trafficking in organs, tissues, and cells has been the subject of international debate. In 2005 the United Nations General Assembly adopted a resolution on the subject (UN General Assembly 2005),3 but it did not lead to any further developments and there is still no sign, at this level, of a legally binding instrument that would set out the principle of the prohibition of making financial gains from the human body or its parts. However, the European community has been more proactive.

  • 4 Note, however, that the Convention has been ratified by fewer than half of the member states of th (...)
  • 5 The report suggested that legislative loopholes in national criminal codes and lack of effective e (...)

15As early as 2002, the European Convention on Human-Rights and Biomedicine was supplemented by an additional protocol on transplantation of organs and tissues of human origin (Council of Europe 2002).4 The Council of Europe Parliamentary Assembly took up the matter in 2003, following a report from its Social, Health and Family Affairs Committee, which indicated that trafficking in organs was a regional problem with “donor” recruitment practices in several countries of Eastern Europe, and that it appeared to be well organized and extremely mobile, involving networks of brokers, qualified medical doctors, and specialized nursing staff with links to police and customs officials for purposes of passport delivery and “secure” border crossings (Council of Europe 2003).5 Subsequent discussions suggested that the legal prohibition of commercialization of the human body and its parts be extended to apply to citizens travelling abroad, that criminal sanctions be imposed on medical staff involved in carrying out operations resulting from organ trafficking, and that national medical insurance deny reimbursements for illegal transplants abroad and for follow-up care of illicit transplants, but that paid donors should not be held criminally responsible (Council of Europe Parliamentary Assembly 2003; Council of Europe 2004).

  • 6 Under Directive 2010/45/EU (EU 2010), the competent authority should be, preferably, a single non- (...)

16Furthermore, in 2010 the European Union issued a directive on standards of quality and safety of human organs intended for transplantation (EU 2010). The directive leaves the criminal aspects of organ transplantation to the domestic jurisdiction of the member states. Nonetheless, it contributes indirectly to combating organ trafficking through the establishment of competent authorities,6 in addition to the authorization of transplantation centers and the establishment of conditions of procurement and systems of traceability.

  • 7 Note that the Draft Council of Europe Convention does not include in its scope trafficking in huma (...)

17Last but not least, in 2013, the Parliamentary Assembly of the Council of Europe discussed and commented on a Draft Convention against Trafficking in Human Organs that had been prepared by the European Committee on Crime Problems (CDPC 2012; Council of Europe Parliamentary Assembly 2013),7 and recommended that it be open to signature by states that are not members of the Council of Europe. If adopted, this convention would be the first legally binding international instrument devoted solely to organ trafficking. The underlying approach of the Draft Council of Europe Convention is that trafficking in human organs violates human dignity and the right to life and constitutes a serious threat to public health. As opposed to the EU Directive, it defines trafficking in human organs and introduces new criminal offences to prevent and combat the most serious associated human-rights violations.

Professional self-governance

18As already mentioned, professional organizations have taken a lead role in the self-regulation of transnational organ-transplant practices. In addition to the aforementioned WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation (WHO 2010) the World Medical Association also took up the matter (WMA 2000, 2006). Most significantly, professional societies of physicians specializing in transplantation and nephrology took upon themselves the responsibility to combat organ trafficking and transplant tourism, and produced the 2008 Declaration of Istanbul, which states that preservation of “the nobility of organ donation” was one of its purposes (Declaration of Istanbul 2008).

  • 8 Similarly, the Draft Council of Europe Convention (CDPC 2012) proposes to impose criminal responsi (...)

19According to the declaration, organ trafficking and transplant tourism violate principles of equity, justice, and respect for human dignity, and should be prohibited (Principle 6). Travel for transplantation becomes transplant tourism if it involves organ trafficking or commercialism, or if the resources (organs, professionals, and transplant centers) devoted to providing transplants to patients from outside a country undermine the country’s ability to provide transplant services for its own population. Each country needs a transparent regulatory oversight system that ensures donor and recipient safety and the enforcement of standards and prohibitions on unethical practices. Prohibitions should also include penalties for professional actions, such as medically screening donors or organs, or transplanting organs, that aid, encourage, or use the products of unethical practices.8

Emerging norms in relation to organ trafficking

20Despite the fact that to date there is no legally binding instrument against trafficking in organs, an overview of the above documents indicates a general consensus that transplantation practices that circumvent the prohibition of making financial gains from human body parts, or involve exploitation, deception and coercion, amount to violations of human dignity and human-rights and should be banned. There also seems to be a degree of agreement on the essential components of an international regulatory regime that aims to prevent unethical organ transplant practices and to protect victims, and recognizes the need to lay down punitive criminal law measures.

21A first step is to define trafficking in organs. In addition to the fundamental norm of informed consent to any medical intervention, the paramount principle remains the prohibition of making financial gains from the human body. Thus, the Draft Council of Europe Convention (CDPC 2012) defines the criminal offence of the illicit removal of organs as follows:

Article 4–Illicit removal of human organs
1. Each Party shall take the necessary legislative and other measures to establish as a criminal offence under its domestic law, when committed intentionally, the removal of human organs from living or deceased donors:
a. where the removal is performed without the free, informed and specific consent of the living or deceased donor, or, in the case of the deceased donor, without the removal being authorized under its domestic law;
b. where, in exchange for the removal of organs, the living donor, or a third party, has been offered or has received a financial gain or comparable advantage;
c. where in exchange for the removal of organs from a deceased donor, a third party has been offered or has received a financial gain or comparable advantage.

22The Draft Convention also proposes to criminalize the use, storage, and transportation of illicitly removed organs (Articles 5 and 8), and the solicitation and recruitment of organ donors or recipients for financial gain (Article 7). Essentially, the implantation of human organs outside of the framework of the domestic transplantation regulatory system would also be a criminal offence (Article 6), and there would be extra-territorial jurisdiction over any offence committed by or against nationals of a certain state (Article 10).

  • 9 See Council of Europe and UN (2009) and Council of Europe (2004) Recommendation 7, in which Articl (...)

23A common element of the various attempts to address trafficking in organs is to establish a transparent regulatory oversight system at the national level, with accreditation of medical centers for organ procurement and transplantation so as to ensure donor and recipient safety (including post-transplantation surveillance of adverse events and the collection of information required for organ traceability), and equitable access to transplantation services according to medical criteria. Once such a system is in place, the goal is to attain domestic self-sufficiency for organ transplantation. Any transaction outside the national system would then be considered organ trafficking and subject to criminal penalty, with extra-territorial jurisdiction.9 It appears, too, that victims’ apparent consent to donate organs would not legitimate an otherwise forbidden practice, in accordance with the international law on human trafficking in general.

24While there appears to be a consensus that paid donors should not be held criminally responsible, there remains some debate as to whether the ban on paying for organs should apply to transplant recipients who travel abroad to circumvent domestic prohibitions on commercialization. In any event, professional organizations focus the criminal offences on the go-betweens and the involved health-care professionals (WHO 2010; WMA 2000, 2006; Declaration of Istanbul 2008). They seem to be in general agreement about the following:

  • The commercial solicitation of organs (i.e., advertisement and brokerage involving payment), should be prohibited.
  • Health-care professionals should not offer or receive any undue advantage in connection with the illicit removal of organs.
  • Transplant surgeons should not be involved in transplantation procedures if they know or suspect that the organs have not been procured legally or ethically.
  • Health insurers should deny reimbursements for illegal transplants abroad and for follow-up care of illicit transplants.
  • 10 Neither the Draft Council of Europe Convention (CDPC 2012) nor Directive 2010/45/EU (EU 2010) addr (...)
  • 11 Note, in this regard, stem-cell tourism as another outstanding issue. See, e.g., Kiatpongsan and S (...)

25As already mentioned, the 2010 WHO Guiding Principles (WHO 2010) on organ transplants extend also to tissues and cells of human origin. However, as opposed to the broad consensus about the regulation of transnational organ transplantation, there is a relative absence of agreement when it comes to the removal and use of human tissues and cells.10 The most comprehensive attempt to regulate tissue and cell transplantation is Directive 2004/23/EC (EU 2004), which sets standards of quality and safety for the procurement and use of human tissues and cells and has a very broad scope of application, including inter alia reproductive cells (eggs, sperm), fetal tissues and cells, and adult and embryonic stem cells. However, it does not cover research, which raises sensitive issues around human embryos. Furthermore, questions about the governance of biobanks remain to be resolved (see European Commission 2012; Knoppers 2005). And lastly, regulation of quality and safety is different from regulation of trafficking.11

Third-party reproduction

  • 12 The figure is mentioned in a decision of Israel’s Supreme Court (HC 566,6569/11 Mamet-Meged v. Min (...)

26Cross-border third-party-reproduction practices—surrogate-mother arrangements and egg-cell donations—are relatively recent. In Israel, for example, the first instances of children born of international surrogacy occurred in 2005. But there has been a steady increase in the practice, and in 2012, according to Ministry of Interior records, there were approximately 130 cases of requests to register children in the population registry.12 The subject is now being discussed by the Hague Conference on Private International Law (2011, 2012, 2013), because of issues pertaining to the welfare of the children born from these arrangements, which go to uncertain legal parentage and nationality. At the same time, little attention has been paid to the exploitation, coercion, and deception of women as providers of reproductive services, and existing instruments on trafficking in human beings and organs fail to address reproductive practices, while instruments on tissues and cells typically exclude reproductive organs, tissues, and cells.

Egg-cell donations

27The need for egg-cell donation seems to be greater than that for surrogacy. In Israel, for example, the number of requests for approval of domestic surrogacy agreements over a period of fifteen years is in the range of several hundreds, while during the parliamentary discussions of the Egg-Cell Donation Law, 2010, estimates of the number of women seeking egg-cell donations each year were in the thousands (Shalev and Werner-Felmayer 2012). Egg-cells are also in demand for stem-cell regenerative research, and there is evidence of a flourishing global market for egg-cells, where transnational in vitro fertilization (IVF) clinics broker sales between generally poor, female vendors and wealthy purchasers, beyond the borders of national regulation and with little clinical or bioethical scrutiny (Waldby 2008). The problems associated with egg-cell donation go to fundamental issues of informed consent and quality of care and follow-up, given the health risks associated with preparatory hormonal treatments and the invasive procedure of egg-cell retrieval. There have been known instances of illicit medical practices surrounding transnational egg-cell donation that involve forms of exploitation of women, but these have not led to any organized international legal response (Shalev and Werner-Felmayer 2012).

Surrogacy arrangements

  • 13 According to a press release from the US Attorney’s Office (2011), Theresa Erickson, a renowned at (...)

28The abuses associated with surrogacy are of a graver nature. While egg-cell donation is a largely undetected practice, international surrogacy arrangements usually come to the attention of the authorities when the intending parents request travel documents at consular authorities overseas for the child in order to return “home.” A major concern is to distinguish practices of transnational reproductive collaborations from crimes of trafficking in babies or circumventing the Hague Conventions on international child abduction (Hague Convention 1996) and inter-country adoption (Hague Convention 1993). In at least one case, the trafficking went beyond questions about the welfare of the children and also entailed abuse, deception, and exploitation of the women who were involved.13 In India, where surrogacy tourism has become a billion-dollar business, social-science studies and human-rights reports describe deprivations of liberty (controlled housing), violations of bodily integrity (non-consensual abortions, high c-section rates), and exploitation of maternal labor (multiple embryo implantations, wet nursing), over and above the inherent health risks (Saravanan 2013; Nadimpally et al. 2011; Center for Social Research 2014; SAMA 2012).

29International surrogacy raises grave concern regarding exploitation at the hands of unregulated intermediaries. The intending parents are vulnerable, for example, to extortion following the birth in relation to obtaining the necessary documents to allow them to return with the child to the country of origin. However, there is particular concern with regard to the surrogate mothers. The conditions to which they are subjected indicate violations of human dignity and human-rights. Therefore, there is an urgent need to regulate the international market so as to help ensure fair practices, prevent human-rights violations, and initiate a discussion on the criminalization of extreme abuses. Although surrogate mothers are not necessarily transported physically across borders, they are part of transnational arrangements, which involve the movement of eg-cell donors, the movement of the intending parents, or the transfer of gametes (egg-cells and sperm) and embryos (fertilized eggs) in various permutations. Where such cross-border practices involve exploitation, coercion, and deception, they need to be recognized as a new form of trafficking in women.

Towards a human-rights instrument

30Currently international instruments regarding the trafficking in human beings do not cover these practices. As opposed to the field of organ transplantation, in the area of reproduction professional organizations have not laid down clinical standards of efficacy, quality and safety, and neither have they taken a leadership role in terms of ethical self-governance. There are differences between organ transplantation and third-party reproduction. Most significantly, as opposed to the general view that organ transplantation is essentially a beneficial medical intervention, there is a wide spectrum of domestic law on the permissibility of third-party reproduction, and some jurisdictions view it as morally circumspect. Indeed, legal restrictions in countries of origin are a major factor in the growth of infertility tourism.

31However, the lack of regulation enhances the vulnerabilities of the adults who are party to the reproductive collaboration to physical and emotional harms, and to social harms that are rooted in the structural injustice of underlying global inequalities. In particular, third-party reproduction is a highly gendered global phenomenon, whereby women from lower-income countries are increasingly acting as egg donors and surrogate mothers for women and men from higher-income countries (European Parliament 2013).

32The regulation of cross-border third-party reproduction could draw from two models so as to ensure fair practices and reduce risks of exploitation. On the one hand, as in intercountry adoption, designated central authorities could be placed as “gatekeepers” of the process, while responsibilities may be delegated to competent “accredited” bodies. The two states involved in the particular surrogacy arrangement must both agree before the arrangement can proceed; so that both states would have the power to prevent it from taking place if it is felt to be contrary to their perceptions of proper jurisdiction or the law to be applied. On the other hand, as in organ transplantation, certain minimum safeguards should be agreed upon as international principles. There is need for medical self-governance and responsibility. There is need for a comprehensive international approach in the countries of origin, transit and destination. There is need to gather and share information. There is need to regulate intermediaries, and protect all the vulnerable adults, including the intended parents. There is need to recognize violations of human-rights as reproductive trafficking, and to criminalize the most egregious instances. Such structures and procedures could enable states to control the process so as to prevent abuses of human-rights and exploitation, and to ensure in advance the certainty of the children’s legal status.

Conclusion

33Trafficking in human beings for the purpose of removal of organs is well regulated in international law, but is a minor phenomenon in relation to trafficking in organs as such, for which as yet there is no legally binding instrument. Nonetheless, there is general agreement about the norms that should apply, stemming from the paramount principle of non-commercialization of the human body and its parts. As regards trafficking in human tissues and cells, including for research, there is need for further deliberation, but there too the areas of agreement and disagreement are fairly clear. However, when it comes to third-party reproduction there is a dearth of materials. With the growth of the practice of international surrogacy, issues pertaining to the legal parentage and nationality of the children born from these arrangements are now under discussion. However, little attention has been paid to the vulnerability of the involved adults, and particularly the women who are providing reproductive services (egg-cell donation and gestational surrogacy), to human-rights violations and to exploitation, coercion and deception.

34Cross-border medically assisted reproduction, and particularly international surrogacy, is a highly gendered phenomenon and may be seen in the context of globalization, whereby women from lower-income countries are increasingly acting as egg donors and surrogate mothers for women and men from higher-income countries. A key characteristic of third-party reproduction is the fragmentation of women’s reproductive roles. In some cases, transnational practices allow for anonymity, which precludes personal contact and relationships. Anonymity conceals the identity and the face of the individual, and makes it easier to objectify her as an instrument for the fulfillment of the desire to have a child (Shalev 2012).

35Issues of transnational third-party reproduction practices are not addressed in the relevant instruments on trafficking in human beings, and the cross-border transportation of human sperm, egg-cells and embryos are mostly excluded from regulatory directives on tissues and cells. While some attention is now being given to questions arising with regard to the status of offspring, there is a glaring absence of any form of governance with regard to the human-rights of the women involved in these practices. There is an urgent need to start discussing these matters with a view to articulating a code of ethics and drafting an international human-rights convention that would criminalize certain practices as forms of reproductive trafficking. But the highest priority is that professional organizations take responsibility to lay down clinical standards of efficacy and safety that apply internationally.

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Notes

1 The European Convention on Biomedicine and Human-Rights (Council of Europe 1997), prohibits financial gain from the human body and its parts. The Charter of Fundamental Rights of the European Union (EU 2000), adopts similar language under the caption “Right to the integrity of the person.” The Additional Protocol to the Convention on Biomedicine and Human-Rights (Council of Europe 2002) speaks of financial gain "or comparable advantage," and goes on to prohibit “traffic in organs and tissues.” The World Medical Association Statement on Human Organ Donation and Transplantation (WMA 2000, 2006) refers to the altruistic basis for organ donation, and notes that access to medical treatment based on ability to pay is inconsistent with principles of justice. Directive 2010/45/EU (EU 2010) on standards of quality and safety of human organs intended for transplantation suggests that “the procurement of organs should be carried out on a non-profit basis.”

2 For example, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OHCHR 2002) expressly prohibits “offering, delivering or accepting, by whatever means, a child for the purpose of… transfer of organs of the child for profit.” See, too, the Convention on Action against Trafficking in Human Beings (Council of Europe 2005); and the European Union directive on trafficking in human beings (EU 2011), which considers trafficking for the removal of organs to constitute a serious violation of human dignity and physical integrity.

3 The General Assembly expressed alarm at “the potential growth of exploitation by criminal groups of human needs, poverty and destitution for the purpose of trafficking in human organs.” Deploring the commercialization of the human body, it urged member states to adopt the necessary measures to prevent, combat, and punish the illicit removal of and trafficking in human organs.

4 Note, however, that the Convention has been ratified by fewer than half of the member states of the European Union, and the Additional Protocol was ratified by only four (Pattinson 2008).

5 The report suggested that legislative loopholes in national criminal codes and lack of effective enforcement mechanisms pointed to an urgent need for action at national and international levels. It recommended inter alia that the medical profession should bear legal responsibility for tracking irregularities in organ transplants.

6 Under Directive 2010/45/EU (EU 2010), the competent authority should be, preferably, a single non-profit-making body that is officially recognized with overall responsibility for donation, allocation, traceability, and accountability. As we shall see, the establishment of competent national authorities is a key component of the Hague Convention on Intercountry Adoption, which is relevant to the regulation of cross-border third-party reproduction.

7 Note that the Draft Council of Europe Convention does not include in its scope trafficking in human tissues and cells.

8 Similarly, the Draft Council of Europe Convention (CDPC 2012) proposes to impose criminal responsibility on health-care professionals who offer or receive any undue advantage in connection with the illicit removal of organs (Article 7).

9 See Council of Europe and UN (2009) and Council of Europe (2004) Recommendation 7, in which Article 2 (4) defined trafficking in organs so as to include: (1) the transportation of a person to a place for the removal of organs or tissues without his or her valid consent; or with his or her consent but in contravention of legislation or other controls in operation in the relevant jurisdiction; and (2) the transplantation of removed organs and tissues, whether transported or not, in contravention of legislation or other regulations in operation in the relevant jurisdiction or in contravention of international legal instruments.

10 Neither the Draft Council of Europe Convention (CDPC 2012) nor Directive 2010/45/EU (EU 2010) address trafficking in human tissues and cells. The Additional Protocol to the Council of Europe Convention on Human-Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin (Council of Europe 2002) applies to cells, but not to tissues. For a review of the agreement and disagreement around issues of human tissues and human cells transplantation, see Schulz-Baldes, Biller-Andorno, and Capron (2007).

11 Note, in this regard, stem-cell tourism as another outstanding issue. See, e.g., Kiatpongsan and Sipp (2009).

12 The figure is mentioned in a decision of Israel’s Supreme Court (HC 566,6569/11 Mamet-Meged v. Ministry of Interior [28/1/2014]) in which the Court, by a majority opinion, admitted a petition by a gay couple who arranged for the birth of a child through surrogacy in the US using the sperm of one of the couple, and ordered that the other partner be registered as the child’s father on the basis of her birth certificate and a parental order issued by a court in the US.

13 According to a press release from the US Attorney’s Office (2011), Theresa Erickson, a renowned attorney specializing in reproductive law, admitted to being part of a baby-selling ring. In her guilty plea, Erickson admitted that she and her conspirators used surrogate mothers to create an inventory of unborn babies that they would sell for over $100,000 each. They accomplished this by paying women to become implanted with embryos in overseas clinics. If the women sustained their pregnancies into the second trimester, the conspirators offered the babies to prospective parents by falsely representing that the unborn babies were the result of legitimate surrogacy arrangements, but that the original intended parents had backed out.

Auteur

Professor of law whose work focuses on health and human-rights, bioethics and biopolitics. She is head of the Department for Reproduction and Society at the International Center for Health, Law and Ethics, Haifa University, Israel, and a member of Israel’s National Bioethics Council. In the wake of this symposium she has initiated a long-term project on the Ethics and Regulation of Intercountry Medically Assisted Reproduction (ERIMAR).

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