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, law experts, and physicians, due to its exploitative nature and its detrimental effects on the integrity of the transplant system. The combat against organ trafficking has only very recently become a priority for intergovernmental human rights, security and law-enforcement organisations, such as the United Nations, the Council of Europe, the European Union, the Organization for Security and Co-operation in Europe and Interpol. As a result, various international legal instruments prohibit commercial dealings, coercion and fraud in the context of organ donation. In a parallel legal development, organ removal has also been included in international legal instruments dealing with trafficking in persons.
Following the example of these binding criminal law instruments in the field of trafficking in persons for the removal of organs, and in response to the loopholes left by them, the Council of Europe has recently adopted a Convention against Trafficking in Human Organs, hereby establishing a parallel criminal law regime. However, 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 is major interest in (1) a clear delineation between both types of crimes, and (2) the way in which relevant provisions are currently implemented and should best be implemented in domestic law. In addition, taking into account the heterogeneous origin of both legal regimes, uncertainty exists about a number of crucial legal issues.
The proposed research project will involve an in-depth legal analysis of the exact scope and delineation of the parallel international legal frameworks developed around organ trafficking and trafficking in persons for the removal of organs. Particular attention will be paid to the importance of the recently adopted Council of Europe Convention against Trafficking in Human Organs, signed by Belgium and several other Council of Europe Member States at its signing ceremony held on 25 March 2015.
Subsequently, the normative validity of key policy options in the implementation of both legal regimes will be examined. This will involve an assessment of (1) the (un)desirability of criminalising donors and/or recipients, and (2) the extent of the duty to report on the part of physicians who are confronted with instances of organ trafficking and trafficking in persons with the purpose of organ removal.
Next, a comparative legal analysis will be undertaken of relevant legal provisions currently in place in (a) Belgium and its neighbouring countries, (b) European countries that have been involved in the trafficking crimes concerned (e.g. Moldova, Spain, Turkey), and (c) non-European countries which have recently adopted relevant provisions (e.g. United States, Israel, Pakistan). More in particular, this will involve an examination of (1) the criminal law provisions dealing with trafficking in persons for the removal of organs, (2) the criminal law provisions dealing with organ trafficking, and (3) the protective and preventative measures contained in the transplant regulations.
Finally, on the basis of the findings of this research project, loopholes and best practice examples will be identified and guidance developed on how best to implement provisions .