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Transnational crimes related to health: How should the law respond to the illicit organ tourism?

Published online by Cambridge University Press:  02 January 2018

Sheelagh McGuinness  and
Jean V McHale
Sheelagh McGuinness*
Affiliation:
Birmingham Law School
Jean V McHale
Affiliation:
Birmingham Law School
*
Sheelagh McGuinness and Jean V McHale, Centre for Health Law, Science & Policy, Birmingham Law School, University of Birmingham, Edgbaston, Birmingham B15 2TT, UK. Email: [email protected]; [email protected]
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Abstract

In this paper, to paraphrase Scheper-Hughes, we explore the contested legalities and illegalities of medical tourism. Increasingly, individuals are travelling outside of their home jurisdiction to access health services. This may be for a range of reasons: for speed, for cheapness or in some cases to bypass criminal restrictions at state level. This paper explores those who fall into the latter category and who travel to avoid statutory or regulatory prohibitions in relation to certain clinical procedures in England and Wales. In this paper, we consider the appropriate legal response to illicit transplant tourism. We examine the legitimacy of using extra-territorial jurisdiction to enforce the ban on the commercial trade in organs found in the Human Tissue Act 2004. We suggest that this, along with the recent Draft Council of Europe Convention against Trafficking in Human Organs, provide an effective response to the transnational crime of illicit organ tourism.

Type
Research Article
Information
Legal Studies , Volume 34 , Issue 4 , December 2014 , pp. 682 - 708
Copyright
Copyright © Society of Legal Scholars 2014

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Footnotes

*

We would like to thank John Coggon, Rob Cryer, Marie Fox, John Harrington and Stephen Latham for comments on previous drafts of this paper. We are also grateful to audiences at the Current Legal Issues Conference 2012 and the WG Hart Legal Workshop 2012 for discussion on the presentation of previous drafts of this paper.

References

Notes

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27. Resolution adopted by the 57th World Health Assembly, 22 May 2004, WHA57/18.

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33. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, ch VII, available at http://conventions.coe.int/Treaty/en/Treaties/Html/164.htm (accessed 25 July 2013).

34. Parliamentary Assembly Recommendation 1611 (2003) on trafficking in organs in Europe, available at http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta03/EREC1611.htm (accessed 24 January 2013).

35. CETS No 186, and see also Parliamentary Assembly Recommendation 1611 (2003) on trafficking in organs in Europe; Committee of Ministers Recommendation (2004) 7 to Member States on organ trafficking. See also Asian Task Force on Organ Trafficking Recommendation on the Prohibition, Prevention and Elimination of Organ Trafficking in Asia, cited in Joint Council of Europe/United Nations study 2009, above 29.

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37. This article concerns the integrity of the person.

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40. Ibid, para 19.

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46. An overview of the literature highlights a divide between those who focus on the purchasing power of these individuals as opposed to those who focus on the cultural factors that may cause people to travel. See, for example, the distinction between the representation of buyers in Ambagtsheer et al, above 9, as opposed to Scheper-Hughes, N ‘Commodity fetishism in organs trafficking’ (2001) 7 Body & Soc'y 31–62. It could that the difference is evidence of distinct communities of buyers and the difference highlights the heterogeneity of this group.Google Scholar

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49. Ambagtsheer et al, above 9, pp 15–17. See also Cronin et al, above 48.

50. Cronin et al, ibid.

51. Ambagtsheer et al, above 9, pp 15–17; Cohen, IG ‘Transplant tourism: the ethics and regulation of international markets for organs’ (2013) 41 J L Med & Ethics 269–285.Google Scholar

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61. In 2003, a report of the Council of Europe Parliamentary Assembly noted that trafficking networks targeted poorer European countries such as Estonia, Bulgaria, Georgia, Russia, Moldavia, Romania and the Ukraine, and pressurised people into selling kidneys: see further Council of Europe ‘Trafficking in organs in Europe’ (2003); see also discussion in Wilkinson, above 57, 105.

62. Veatch, R ‘Why liberals should accept financial incentives for organ procurement’ (2003) 13 Kennedy Inst Ethics J 19; for a convincing rebuttal of such an argument,Google Scholar see Cohen, above 59, at 135.

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66. Ibid.

67. Atiyah, Ps Essays on Contract (Oxford: Clarendon Press, 1986) Essay 6. An example of such a restriction is the prohibition on organ sales found in the Human Tissue Act 2004. This demonstrates that we already restrict this particular freedom to contract at a domestic level. Therefore, it is hypocritical to allow transnational sales to go unpunished, particularly when such sales may take place in a context with even greater propensity for harm than that domestically.Google Scholar

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82. Chen and Flood, above 3, at 288–291.

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84. ‘Organ trafficking: Dutch to lead international inquiry’ Bbc News, 16 December 2012), available at http://www.bbc.co.uk/news/world-europe-20354401 (accessed 24 January 2013). Geographically, this is not always the case – individuals from Japan and Taiwan have long been known to travel to China to access organs: ‘Japanese flock to China for organ transplants’ Asia times Online 4 April 2006), available at http://www.atimes.com/atimes/China/HD04Ad01.html; (accessed 17 November 2013). However, the socio-economic tone rings through in both cases: P Lewis ‘The doctor at the heart of Kosovo's organ scandal’ The Guardian 17 December 2010, available at http://www.guardian.co.uk/world/2010/dec/17/kosovo-medicus-organ-clinic (accessed 24 January 2013).

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89. Boister, above 7, p 14.

90. Ibid, p 123.

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93. Ibid.

94. Ibid.

95. Ibid, at 126.

96. ‘Towards a Council of Europe Convention to combat trafficking in organs, tissues and cells of human origin’, above 5; ‘Committee of Experts on Trafficking in Human Organs, Tissues and Cells (Pc-to)’, available at http://www.coe.int/t/DGHL/STANDARDSETTING/CDPC/PC_TO_en.asp (accessed 23 January 2013).

97. Ibid.

98. Draft Council of Europe Convention against Trafficking in Human Organs, Art 1, available at http://assembly.coe.int/ASP/XRef/X2H-DW-XSL.asp?fileid=19236&lang=EN (accessed 23 January 2013).

99. Ambagtsheer et al, above 9.

100. The government of New South Wales has recently taken steps to deal with this discrepancy. See ‘Cash for kidneys as organ donors set to get wage from government’, available at http://www.news.com.au/breaking-news/organs-a-nice-earner-as-donors-to-get-wage/story-e6frfkp9-1226613961284#ixzz2WlKXsMVu (accessed 20 June 2013).

101. Ambagtsheer et al, above 9.

102. Draft Council of Europe Convention against Trafficking in Human Organs, above 98, Art 5.

103. Ibid, Art 7.

104. Ibid, Art 7(3).

105. See eg Sidley, P ‘South African doctors charged with involvement in organ trade’ (2004) 329 BMJ 190.Google Scholar

106. Draft Council of Europe Convention against Trafficking in Human Organs, above 98, Art 8.

107. Ibid, Art 9.

108. Ibid, Art 10(7).

109. Ibid, Art 11.

110. Ibid, Art 12.

111. Boister, above 7, p 136.

112. ‘Towards a Council of Europe Convention to combat trafficking in organs, tissues and cells of human origin’, above 5.

113. Ibid.

114. Article 13.

115. Article 17.

116. Boister, above 7, p 137.

117. ‘Towards a Council of Europe Convention to combat trafficking in organs, tissues and cells of human origin’, above 5, para 8.3.

118. Draft Council of Europe Convention against Trafficking in Human Organs, above 98, Art 18.

119. Ibid, Art 21.1.

120. Ibid, Art 21.2(3).

121. ‘Towards a Council of Europe Convention to combat trafficking in organs, tissues and cells of human origin’, above 5.

122. It should be noted that the UK is still not a signatory to the Council of Europe Convention on Human Rights and Biomedicine.

123. See Brahams, D ‘Kidneys for sale by living donors’ (1989) Lancet 285;Google Scholar ‘Kidneys for Sale’ (1989) New L J 159.

124. Human Tissue Act 2004, s 32.

125. Liddell, K and Hall, A ‘Beyond Bristol and Alder Hey: the future regulation of human tissue’ (2005) 13 Med L Rev 170; during the debates, the government minister Rosie Winterton stated that it was: ‘never our intention to interfere with commercial activities that had been lawfully and ethically carried on for many years. We therefore propose to amend the Bill to confine the offences connected with advertising and supply of human tissue for reward to transplantable tissue only’ (Hansard HC Deb, col 115, 28 June 2004).Google Scholar

126. Human Tissue Act 2004, s 32(8), (9).

127. Human Tissue Act 2004, s 32(9).

128. Criminal penalties: summary – max 1 year prison or fine; on indictment – max 3 years prison – or fine.

129. Respectively, Human Tissue Act 2004, s 3.2(6) and s 32(7).

130. R v Tuck, above 83.

131. See the two principal reports into organ retention: Bristol Inquiry Report Removal and Retention of Human Material, hereafter referred to as the Bristol Inquiry (Department of Health, 2000); The Royal Liverpool Children's Inquiry Report, hereafter referred to as the Redfern Report (London, The Stationery Office, 2001). For a discussion of the impact of the findings of these Inquiries, see Mason, Jk and Laurie, Gt ‘Consent or property: dealing with the body and its parts in the shadow of Bristol and Alder Hey’ (2001) 64 Mod L Rev 710.Google Scholar

132. ‘Warning over Uk's “organ tourists” ’, 15 August 2008, available at http://www.politics.co.uk/news/2008/08/15/warning-over-uk-s-organ-tourists (accessed 24 January 2013). In this article, Adrian McNeil, then Chief Executive of the Human Tissue Authority, commented that ‘It is not an offence for a person in the UK to seek medical treatment abroad, but patients seeking this route might find it difficult to assure themselves both of the quality and safety of the transplant and whether the donor has given fully informed consent.’ He went on to say that the international transplant community condemned such travel.

133. Y Shimazono The State of the International Organ Trade: a Provisional Picture Based on Integration of Available Information (2009), WHO, available at http://www.who.int/bulletin/volumes/85/12/06-039370/en/#R28#R28 (accessed 24 January 2013).

134. Lunt et al, above 12.

135. The Vienna Forum to Fight Human Trafficking, 13–15 February 2008, Austria Center, Vienna, Background Paper.

136. Devereaux and Lorings, above 75, at 20.

137. Parliamentary Assembly Recommendation 1611 (2003) on trafficking in organs in Europe, available at http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta03/EREC1611.htm (accessed 24 January 2013).

138. Tsai, Fu Chang ‘Transplant tourism from Taiwan to China: some reflection on professional ethics and regulation’ (2010) 10 Am J Bioethics 22.Google Scholar

139. We are ambivalent about this as an absolute rule, given the diversity of the situations that can lead someone to travel for a transplant.

140. ‘Liver Advisory Group alcohol guidelines: November 2005’, available at http://www.organdonation.nhs.uk/about_transplants/organ_allocation/pdf/liver_advisory_group_alcohol_guidelines-november_2005.pdf (accessed 24 January 2013).

141. Meyer, above 8, at 229.

142. See further Lowe, V International Law (Oxford: Clarendon Law Series, 2007) ch 5;CrossRefGoogle Scholar Shaw, M International Law (Cambridge: Cambridge University Press, 2008) ch 12.CrossRefGoogle Scholar

143. Boister, above 7, pp 142–147.

144. Harden [1963] 1 QB 8; Hurst, M Jurisdiction and the Ambit of the Criminal Law (Oxford: Oxford University Press, 2003).CrossRefGoogle Scholar

145. [1963] AC 48 at 67.

146. The offence of murder by a British subject and conspiracy to commit murder apply wherever they take place; see Offences Against the Person Act 1861, ss 9 and 4. Other offences include the Bribery Act 2010, s 7; and Sexual Offences Act 2003, s 72.

147. Health professionals have a monitoring role to identify those who may be at risk of female genital mutilation either in the UK or who risk being taken overseas for this procedure: see further Simpson, J et al ‘Female genital mutilation: the role of health professionals in prevention, assessment, and management’ (2012) 344 BMJ 37–41.Google Scholar

148. Harden (1963) 1 QB 8 and Treacy v DPP [1971] AC 537.

149. (1998) Court of Appeal 2 Cr Appl R 461.

150. Blackstone's Criminal Practice (Oxford: Oxford University Press, 2009) pp 155–156.

151. In Smith (Wallace Duncan) [1996] 2 Cr App R 1 and Smith (Wallace Duncan) (No 4) [2004] QB 418.

152. R v Harden [1963] 1 QB 8.

153. [2004] QB 418.

154. Ibid.

155. Blackstone's, above 150, para A 8.4.

156. R (Purdy) v DPP (2009) UKHL 45.

157. [2010] 1 WLR 2779.

158. For example, a Turkish law bans cross-border reproductive care where this involves gamete donation. Item 231 of the Turkish Penal Code provides that it is illegal to ‘change or obscure a child's ancestry’ and sets a penalty of 1–3 years' imprisonment. See Van Hoof, W and Pennings, G ‘Extraterritoriality for cross-border reproductive care: should states act against citizens travelling abroad for illegal infertility treatment’ (2011) 23 Reprod Biomed Online 546–554. Storrow suggests that this could be upheld because, first, it is an expression of the nationality principle and, second, it is unlikely to give rise to jurisdictional dispute between states:Google Scholar Storrow, Rf ‘Assisted reproduction on treacherous terrain the legal hazards of cross-border reproductive travel’ (2011) 23 Reprod Biomed Online 541. However, such extra-territorial jurisdiction could be the subject of a European Human Rights claim. In the case of SH v Austria, the Grand Chamber took into account, in finding that a prohibition on gamete donation was not a breach of the European Convention on Human Rights, that individuals affected by the domestic prohibition could travel, seeGoogle Scholar S.H. and Others v Austria, no. 57813/00 (Grand Chamber, 3 November 2011).

159. Van Hoof and Pennings, ibid.

160. Boister, above 7, p 14, notes that this is a key feature of transnational criminal law.

161. Parliamentary Assembly Recommendation 1611, above 137.

162. See the discussion of physician attitudes in Ambagtsheer et al, above 9, 11–13.

163. See eg X v Y [1988] 2 All ER 648; General Medical Council Confidentiality (London: GMC, 2009); NMC The Code: Standards of Conduct, Performance and Ethics for Nurses and Midwives (London: NMC, 2008).

164. Campbell v Mirror Group Newspapers [2004] 2 All ER 99.

165. W v Egdell [1990] 1 All ER 835; McHale, JV ‘Confidentiality: an absolute obligation?’ (1989) 52 Mod L Rev 715 Google Scholar; Mason, JK ‘The legal aspects and the implications of risk assessment’ (2000) 7 Med L Rev 69 Google Scholar; Confidentiality: NHS Code of Practice. Supplementary Guidance: Public Interest Disclosures (National Health Service, 2010), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/152224/dh_122031.pdf.pdf (accessed 20 June 2013).

166. Terrorism Act 2000, s 19; also see s 172 of the Road Traffic Act 1988, s 172, where on request a doctor must provide any evidence which may lead to the identification of a car driver involved in an accident.

167. Parliamentary Assembly Recommendation 1611, above 137.

168. Shoham, S et al ‘Invasive filamentous fungal infections associated with renal transplant tourism’ (2010) 123 Transpl Infect Dis 71.Google Scholar

169. See http://www.who.int/bulletin/volumes/85/12/06-039370/en/#R33#R33 (accessed 24 January 2013).

170. ‘Press release: Mhra warns public of potentially dangerous sports supplements’, available at http://www.mhra.gov.uk/NewsCentre/Pressreleases/CON174842 (accessed 29 January 2013).

171. GMC Good Medical Practice: Decisions about Access to Medical Care (London: General Medical Council, 2007).

172. Roberts and Scheper-Hughes, above 1.

173. Gostin, Lo and Taylor, A ‘Global health law: a definition and grand challenges’ (2008) 1 Pub Health Ethics 61.Google Scholar