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Human organs not for sale - Stefano Filletti

On November 7, Malta signed and ratified the European Convention against Trafficking of Human Organs, which came into force here on March 1, 2018. It goes without saying that the trafficking of human organs violates human dignity, including, in certain extreme instances, the right to life itself. It could also pose a serious threat to public health and safety.

The overall aim of the Convention is to criminalise the illegal removal of human organs from living and deceased donors. It lists and targets instances where such an illegal and heinous activity can occur.

Another declared objective is to contribute significantly to the eradication of the trafficking in human organs by introducing new offences to supplement the existing international legal instruments in the field.

What is meant by a human organ? This is taken to mean a differentiated part of the human body, formed of different tissues, that maintains its structure, vascularisation and capacity to develop physiological functions with a significant level of autono­my. It also includes a part of an organ if its function is to be used for the same illicit purpose as the entire organ.

Typical examples are where the re­moval is performed without the free, informed and specific consent of the donor, or in the case of the deceased donor, without the removal being authorised under a State’s domestic law.

Another scenario is where, in exchange for the removal, the living donor, or a third party, receives a financial gain or some comparable advantage. Putting it straight and simple, human organs are not for sale.

The Convention also covers cases of implantation of organs outside the domestic law system or in breach of essential principles of national transplantation law.

An offence would subsist where, when committed intentionally, illicitly removed organs are used for purposes of implantation or purposes other than implantation. The solicitation or recruitment of an organ donor or a recipient donor is also to be considered a criminal offence. Equally, a crimi­nal offence in this context is the promising, offering or giving by any person, directly or indirectly, of any due advantage to healthcare professionals,  public officials or people in private sector entities with a view to having a removal or implantation.

One positive way to counter this nefarious activity is that of adopting preventive measures

In listing this activity as a criminal offence, domestic law is to include the preparation, preservation, storage, transportation, transfer, receipt, import or export of illicitly removed human organs.

Aiding and abetting the commission of any of the criminal offences set down in the Convention are likewise to be considered as a criminal offence.

Another interesting aspect refers to corporate liability. Each party signatory to the Convention is bound to take legislative and other measures to ensure that legal persons can also be held liable for offences under the Convention.

In determining sanctions and penalties, a number of aggravating circumstances are indicated, such as, for instance, if the offence caused death or damaged the mental health of the victim, if it is committed by a person abusing his or her position, in the framework of a criminal organisation or a recidivist offender, or against a child or vulnerable person.

But the Convention goes beyond hitting at the illegal trafficking of human organs.

One positive way to counter this nefarious activity is that of adopting preventive measures. For this reason, the Convention provides measures to ensure transparency and equitable access to transplantation services. It ensures that victims have access to information relevant to their case and which is necessary for the protection of their health and other rights involved.

Furthermore, victims are to be assis­t­ed in their physical, physiological and social recovery.

Finally, the domestic of law of the Member State should include a measure providing for the right of victim compensation from the perpetrators.

Victims can be protected by informing them of their rights and the services at their disposal and, upon request, the follow-up action taken on their complaint. Moreover, victims should be provided with appropriate support services so that their rights and interests are taken into account and protected. Likewise, effective mea­sures should be made available for the victims’ protection, as well as that of their families, from intimidation and retaliation.

As stated during the signing ceremony which took place at Santiago de Compostela in March 2013, and by way of added value, the Convention seeks to “begin closing the loopholes which are exploited by the perpetrators”, and this is done by “taking the law into the shadows in which they operate”.

Dr Stefano Filletti, a practising lawyer, is the head of the Department of Criminal Law at the University of Malta.

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