Today, advertising of human organs is allowed by law. What is illegal is the trafficking of persons for the purpose of their exploitation in the removal of any organ of the human body. This is criminalised by article 248C of the Criminal Code. The law considers this crime to be a serious one and punishes it by imprisonment for between four and 12 years. The punishment can also be increased by one degree if the person trafficked is a minor, that is, a person below the age of 18.
In Malta, we do not yet have a law to regulate organ donation and transplantation. But, thanks to the European Union, we will soon have one.
While we have transposed EU directives regulating blood and tissue donations in the Human Blood and Transplants Act (Chapter 483 of the Laws of Malta), our law does not regulate the procedure of organ donation and transplantation even though such practice exists in Malta.
The EU has been discussing for quite some time a law to regulate organs and has recently adopted Directive 2010/45/EU of the European Parliament and of the Council of July 7, 2010 on standards of quality and safety of human organs intended for transplantation. According to this directive, it has to be transposed by member states – Malta included – by August 27, 2012. Thus, by August 27, 2012, Malta should have for the first time in its legal history a law regulating organ donation and transplantation.
Article 13 of the EU directive states that organ donation from living or deceased donors has to be “voluntary and unpaid”. This point is reaffirmed in the same article when it is stated that “member states shall ensure that the procurement of organs is carried out on a non-profit basis”. The directive thus ensures that EU law should not serve to encourage illegal trafficking in human organs.
However, this article contains an exception where donor compensation is allowed: “The principle of non-payment shall not prevent living donors from receiving compensation, provided it is strictly limited to making good the expenses and loss of income related to the donation.
“Member states shall define the conditions under which such compensation may be granted, while avoiding there being any financial incentives or benefit for a potential donor.”
A restricted financial compensation is thus allowed but only to recover “expenses and loss of income related to the donation”. So, if the donor has to travel from one state to another and stay in a hotel for a few days before being called in to hospital, such expenses are recoverable by the donor in terms of the directive.
Again, if the donor has had to take unpaid leave or has had to give up several days of vacation leave from his yearly entitlement, s/he can recover the income lost.
But the directive restricts itself only to reimbursement of costs incurred in connection with the donation. The donor is not entitled to make any form of profit howsoever designated through the donation.
What is, however, interesting and perhaps even novel in the directive is that it obliges member states to “prohibit advertising the need for, or availability of, organs where such advertising is with a view to offering or seeking financial gain or comparable advantage”.
The directive does not impose a blanket prohibition on the advertising of the need of human organs but does so only when such advertising is “seeking financial gain”. Where no such gain is envisaged, advertising can take place, that is, where only compensation for “making good the expenses and loss of income related to the donation” is intended. In such case, the directive does not prohibit totally advertisements: they can be carried on any medium.
This begs the question: If a commercial is allowed to advertise the making good of the expenses and loss of income related to the donation, does this not mean that the directive is tacitly allowing the donation to go ahead even where the donor is neither a close friend or a relative of the recipient but just a public-spirited person who has replied to the advert well knowing that although s/he will be losing an organ, at least such donation will not be accompanied by a further – financial – loss?
The directive also refers to a “comparable advantage” in relation to the donation. A comparable advantage cannot be a financial gain, which is expressly excluded by the directive, but some sort of profit. This could be, for instance, receiving a benefit in kind such as granting immovable or movable property by way of compensation.
In practice, the directive does not approve the giving of a Ferrari, a yacht or a penthouse to the would-be donor as that would amount to a comparable advantage.
So the transposition of the EU directive into Maltese law might require a reassessment of current practice and policy in relation to waiting lists for organ donation and transplantation. Indeed, the repercussions of the organ donation and transplantation directive on current practice and policy are wider than just article 13 of the directive touched upon in this piece.
Prof. Aquilina is Dean of the Faculty of Laws, University of Malta.