#1728 - Organs As Property - Medical Law

Selling Organs

The Criminal Offences

• Commercialising body parts (s.32 HTA 2004)

  • (1) A person commits and offence if

    • (a) he gives or receives a reward for the supply of, or for an offer to supply, and controlled material

    • (b) seeks to find a person willing to supply any controlled material for reward

    • (c)offers to supply any controlled material for reward

    • (d) initiates or negotiates any arrangement involving the giving of a reward for the supply of, or an offer to supply, any controlled material

    • (e) takes part in the management of an unincorporated or corporate body whose activities include the initiation or negotiation of such arrangements.

  • (2) [In addition] a person commits and offence if he causes to be published or distributed, or knowingly publishes or distributes an advertisement

    • (a)inviting persons to supply, or offering to supply, any controlled material for reward

    • (b) indicating that the advertiser is willing to negotiate any such arrangement as mentioned in (1)(d)

• However it’s not as strict as first appears

  • Can include expenses

    • (7)References ... to reward ...do not include payment in money or money’s worth for defraying or reimbursing—

      • (a)any expenses incurred in, or in connection with, transporting, removing, preparing, preserving or storing the material.

      • (b)any liability incurred in respect of—

        • (i)expenses incurred by a third party in, or in connection with, any of the activities mentioned in paragraph (a), or

        • (ii)a payment in relation [to per (6) they have licence] has effect, or

        • (c)any expenses or loss of earnings incurred by the person from whose body the material comes

          • so far as reasonably and directly attributable to his supplying the material from his body

  • Offences are only committed where

    • The controlled material consists of or includes human cells and is intended for use in transplantation

    • So it doesn’t include gametes, embryos, or “materials which is the subject of property b/c of an application of human skill”

      • Herring: there is a problem here, as this phrase is very vague, and arguably the preserving of an organ removed from a person for transplantation is “the subject of property”

        • If so, then the very purpose of the section – to stop commercialisation of transplant parts – is undermined.

  • S.32(3)

    • Permits the Human Tissue Authority to grant a licence to designated bodies to trade in human material

      • E.g. the National Blood Service can purchase blood from abroad if necessary.

The Ethical Dimension

Arguments against permitting organ selling

• Gains for the rich?

  • The fear

    • If a market is created for organs, then we create a market. Markets tend to be bad things for the poor, as valuable commodities become very expensive as demand increases

      • Therefore the rich would get the organs while the poor might be the ones supplying them

        • At the very least they would have to go without, instead of organs being distributed on the basis of needs

  • Counter arguments

    • Harris: No need to go this far – why not just let the NHS purchase and then distribute as it wishes?

      • Thus providing an incentive to give organs and increase supply, while ensuring that needs are still paramount.

    • Herring: Already have private medicine which allows rich to skip the queue and buy better quality treatments – why not organs?

  • Counter-Counter Arguments

    • Wall: Private healthcare is a service which can be bought into and involve no permanent harm to their provider

      • Organs are assets which cause harm in their extraction

      • There is therefore something of a difference between the two.

• Vendors are coerced or do not validly consent to the sale of their organs

  • The fear

    • People who sell their organs are often driven to do so by poverty and fear of debt collectors

      • Any person wanting to sell their kidney tends to do so in desperation.

  • Counter Arguments

    • If the market is lawful it can be properly regulated, so that only those who properly consent can actually give their organs

    • Also, if people are driven to sell organs owing to poverty, is this coercion?

      • Wikinson: People often agree to do things for money – e.g. 65% people said would have sex with a complete stranger for 1m

      • Those people wouldn’t be thought of as entering into an arrangement against their will

        • Perhaps we should focus on them legitimacy of the pressure than all the pressure of life

• Exploitation

  • The fear

    • George: Selling organs is akin to slavery

      • Is this the sort of society we want – where the poor sell their organs and the rich buy them?

      • The evolution of human civilization has witness several periods of gross exploitation of human brings – slavery, extermination of Jews

        • Selling organs for value is another expression of values which see some human beings more valuable than others

    • Herring: seems a little far-fetched to say that organ selling is akin to Nazi extermination

• Bodily invasion

  • To remove an organ is an invasion of bodily integrity

    • Although this can be justified by the good of altruism, it can’t be justified by commercial sale and profit – it’s not a countervailing good.

  • Mason and Laruie: We’re not normally concerned with people’s motivations for selling things

    • ME: we criminalise those who deal in cannabis even when it is said to have medicinal effect for some people

      • Also, could argue that person is selling kidney in order to help his starving family would be an altruistic act

• Commercialisation of the body

  • Bjorkmann: Allowing body parts to be sold confers on them the same status as other chattels like cars and televisions

    • i.e. disposable and transient

    • this leads to a devaluation of the body and human life, with the body some property to be disposed of at will.

  • Dickinson:

    • The body both is, and is not, the person.

    • But it should never be only a consumer good, a capital investment, a transferrable resource, merely a thing

      • Our consciousness, dignity, energy and human essence are all embodied, caught up in our frail bodies

      • The body is indeed like nothing on earth – not no-one’s thing, but not thing at all.

Arguments in favour of permitting organ selling?

• Freedom

  • Organ selling causes no harm, people should be allowed to sell them if they wish – it is part of the right of autonomy

    • We allow people to sell their hair, engage in risky sports, and but pornography, so why not organs?

• It increases the number of organs available for transplant

  • Allowing a market will increase the numbers of organs available

    • People are unlikely to be put off doing it for free – most organs are donated by relatives anyway

    • All we’re doing is increasing the options.

• Avoids exploitation and the black market

  • The current system means that those who donate organs receive no payment for their valuable resource

    • The providers get nothing while the professionals get paid to do it!

  • Also avoids black market – if organ selling is officially illegal, people more likely to get botched operations to sell organs, rather than it being done safely

    • There is a market for organs, like it or not – decriminalisaing allows for proper regulation and to try and ensure professional standards are reached.

The living body as property

Is the Body treated in law as Property?

• The no property rule

  • 17^th Century – difference between common law and ecclesiastical courts

    • People began to rob graves in order to use for research

    • The common law courts said that the cadaver was the property of no one, and therefore ecclesiastical cognizance would govern what would happen

      • Therefore, there was no cause of action in front of common law courts (e.g. theft) b/c the body was not property

• The no property rule +

  • Moore v Regents of University of California [1990] – Supreme Court of California: M was diagnosed with leukaemia, parts of spleen removed to help his condition. However, he had an usual spleen, and this spleen cell was developed into a cell line which his surgeon then patented and licensed it for substantial profits. M made two causes of action:

    • Breach of fiduciary duty and lack of informed consent by surgeon

      • Doctor in breach of this b/c patient did not know it was to be used for research

    • Claim for conversion and a share of the profits from the patent

      • i.e. we should have share of the profits of it

        • used the old justification as an empty shell and filled it up with content – i.e. would stop research

• Exceptions to the rule

  • Doodeward v Spence: C had his pickled two headed foetus stolen from his office. Suing the thief to get it back, C claimed that the thief had converted it.

    • Griffith CJ

      • Normally not property

      • But where a person by lawful exercise of work and skill so dealt with a corpse in his lawful passion

        • that it acquired attributes differentiating it from a mere corpse

          • that person has acquired a right to possession of the corpse or part in question

  • R v Kelly: C was convicted of a theft of various body parts from the Royal College of Surgeons, as they wished to learn to make casts of the parts and thereby exhibit these casts. They were sentenced to imprisonment for theft, but argued it could not be theft as body parts were not “property”.

    • Rose LJ

      • It has now been the common law for 150 years that neither a corpse nor parts of a corpse are in themselves and without more capable of being property protected by rights

        • However, the body parts here were property owing to the application of skills

          • All the body parts were subject to a regular scheme of inspection, preservation, and maintenance

          • And most of them had been the subject of expert...