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Title
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Illicit organ removal and international criminal law response : strengths and challenges
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Author
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Abstract
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| Organ trafficking – i.e. the use of financial inducements or other illicit means to obtain an organ – is a major point of concern for national governments, legal experts, and healthcare professionals, due to its exploitative nature and its detrimental effects on the integrity of the transplant system. As a result, various international legal instruments prohibit commercial dealings, coercion, and fraud in the context of organ donation. International human rights organisation and professional bodies, including the World Health Organization, the Council of Europe, the World Medical Association, and The Transplant Society developed transplant guidelines and ethical codes laying down minimum standards aimed at guaranteeing the voluntary and altruistic nature of organ donation. In a parallel legal development, in 2010 the United Nations adopted its Protocol to Prevent, Suppress and Punish Trafficking in Persons, which included organ removal as an example of exploitation in the context of trafficking in persons. In Europe, this legislative development was mirrored in the 2005 Council of Europe Convention on Action against Trafficking in Human Beings and in EU Directive 2011/36/EU. In response to the loopholes left by these binding criminal law instruments on trafficking in persons for the removal of organs, the Council of Europe in 2015 adopted a Convention against Trafficking in Human Organs, hereby establishing a parallel criminal law regime. Due to the very recent nature of the criminal law regimes developed around organ trafficking and trafficking in persons for the removal of organs, there was an urgent need to examine the scope and overlap of both types of crimes, and to clarify the way in which the relevant legal provisions are currently implemented and should best be implemented in domestic law, within European borders and beyond. By applying a multimethod research approach, compiling all relevant data, and incorporating the latest insights in the academic literature and the opinions of a wide variety of experts in the field, this PhD identifies the legal and practical issues arising from the adoption of the two international legal frameworks that criminalise illicit organ removal. First, the PhD examines the scope and the legal challenges resulting from the overlap of both frameworks, including possible difficulties in their simultaneous application. This examination resulted in three publications. Second, my research also focused on the usefulness and application of both frameworks in different legal systems and political environments. These include countries affected by a humanitarian and refugee crisis, namely Jordan, Lebanon, and Turkey (discussed in the fourth publication), and a country affected by natural disaster, namely Nepal, which has become one of the organ trafficking hubs in Asia. The current situation in Nepal, including the changing legal landscape regarding illicit organ removal, was discussed in the fifth publication. Third, special attention is paid to the legal interpretations of the crimes of trafficking in persons and organ trafficking in the context of organ donors, and, where applicable, to the philosophical and social science concepts that are connected to illicit organ removal, such as “position of vulnerability” and valid consent. These aspects were discussed in the context of the victimhood or criminal liability of persons who engage in illicit organ removal, on the basis of field research conducted in Nepal in 2019, resulting in the sixth publication. Finally, on the basis of the research findings recommendations were made for all the major stakeholders. These recommendations advocate a more harmonised application of both legal regimes, with regard to the treatment of organ donors, including a proposal of criteria for the determination of victimhood under organ trafficking law, and with regard to the prevention of illicit organ removal. Additionally, this PhD identified areas in need of further research in order to address the outstanding legal, ethical, and practical issues in relation to the prevention and prosecution of illicit organ removal, in light of the constantly evolving nature of organ- and transplant-related abuses. |
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Language
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English
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Publication
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Antwerp
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University of Antwerp, Faculty of Law
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2020
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Volume/pages
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294 p.
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Note
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Van Assche, Kristof [Supervisor]
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Vansweevelt, Thierry [Supervisor]
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Full text (open access)
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