Trade in human organs A vision to develop the necessary legislation and mechanisms to combat the phenomenon

Policy Paper

Issued it

Public Policy Analysis and Human Rights Unit

Affiliate Foundation

, Maat for Peace, Development, and Human Rights

Under a project

The Universal Periodic Review as a Tool to Improve Public Policies during the Transition (Funded by the European Union)

February 11, 2017

“This release was implemented with the help of the European Union. The content of this publication is the responsibility of the Maat Foundation for Peace, Development and Human Rights and can in no way be considered a reflection of the vision of the European Union.

Introduction:

The trade in human organs is one of the most heinous crimes that violate the sanctity of the body, and it is considered one of the forms of the crime of human trafficking that is criminalized by international law. Despite the existence of a law regulating the transfer of organs in Egypt, the reality reveals the prevalence of practices that go beyond the provisions of the law, so that it has turned the matter into a trade from which many parties profit, and perhaps the case that the Administrative Control Authority in Egypt revealed a few months ago and involved a number of Doctors are the most prominent example.

And under interesting Maat for Peace, Development and Human Rights Via Public Policy Analysis and Human Rights Unit By submitting policy proposals to contribute to the improvement of human rights conditions, especially those related to the recommendations of the universal periodic review, this paper was prepared which attempts to provide solutions at the policy level to address the phenomenon of trafficking in human organs in Egypt.

The paper deals with several basic points: The paper begins by listing a theoretical aspect about the phenomenon of trade in human organs and the permissibility of donation, then presenting the legislations and laws that address this forbidden trade, and the second axis of the paper includes the reality of human organ trade in Egypt, in terms of causes and statistics, as well as the consequences of the spread of this The phenomenon, whether on the victim of trafficking or the state, and in the last axis, the paper lists a proposed vision for how to address and prevent trafficking in human organs in Egypt.

The first axis: the introductory framework for trade in human organs

• First, the definition of trafficking in human organs

The United Nations has defined human trafficking[1] That “the recruitment, transfer, transfer, harboring, or reception of persons by means of threat or use of force, or other forms of coercion, kidnapping, fraud, deception, abuse of power, or the exploitation of a state of vulnerability, or by giving or receiving sums of money or benefits for the consent of a person who has control. On another person for the purpose of exploitation. Exploitation includes, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or service, slavery or practices similar to slavery, servitude or the removal of organs. ”

It also explained thoroughly the process of organ removal, which is the use of force, the threat to use it, or other forms of coercion, kidnapping, fraud, deception, abuse of power, or the exploitation of a state of vulnerability, or giving or receiving sums of money or advantages to obtain the consent of a person who has control over a person. else.

• Second, it is permissible to donate human organs

1. The legal aspect

Egyptian law permitted the process of donating human organs in some cases[2]And he defined the mechanisms of the donation process, and stressed that the donation should not be for a financial consideration of any value, as well as criminalizing the sale, and the donation operations were limited to relatives among them with specific and precise conditions. As for non-relatives, the donation was permitted, but under more complicated conditions, in order to protect the donor from potential health damages. Lead his life.

2. The moral side

The process of donating human organs cannot be stopped in some cases, given that there is an ethical aspect represented in the desire by some individuals to donate one of the organs that can be dispensed with, such as kidneys, given that a person has two kidneys, and he can live with one kidney, then donate them to a relative in order to save his life. Such as a son’s donation to one of his parents or one of the parents to their two children and other situations in which the emotion dominates, and the desire results from the complete will of the donor and without financial compensation, and in these exceptions, the transfer and donation process is allowed under the supervision of the Ministry of Health and in the designated places specified by the law, while not It is permissible to donate an organ that may lead to death, such as a heart, as it is suicide[3].

• Third, the legal regulation for the transfer and transplantation of human organs in Egyptian legislation

The Egyptian constitution guarantees the protection of the body against trafficking in it. In Article 60, “the human body is inviolable, and assaulting, mutilating, or mutilating it is a crime punishable by law. It is forbidden to trade in its organs, and no medical or scientific experiment may be conducted on it without the free, documented consent, in accordance with established foundations in the field of medical sciences, as regulated by law.[4]

And in Article 89, All forms of slavery, slavery, oppression, and forced exploitation of people, sex trade, and other forms of human trafficking are prohibited, and the law criminalizes all of this. [5] While the constitution permits organ donation, whether in life or after death, in Article 61 “donation of tissues and organs is a gift of life, and every person has the right to donate his body parts during his life or after his death according to a documented consent or will, and the state commits to establishing a mechanism to regulate the rules for organ donation and cultivation. according to the law."[6]

With reference to the Egyptian law, we find Law No. 5 of 2010 regarding the regulation of transplantation and sale of human organs, and this law is concerned with clarifying the mechanism for donating human organs, as it is not permissible to donate any part of the human body that may lead to the donor being exposed to a grave danger to his health or life[7]The third article also forbids donating from an Egyptian to a foreigner, except in the event that an Egyptian person marries and the other a foreigner, and at least three years have passed since the marriage with a notarized contract. While Article 4 categorically recommends not to transfer an organ from one person's body to another except through a donation from an Egyptian relative. As for non-relatives, when donating, the approval of a special committee in this regard must be formed by the Minister of Health.

The fifth article clarified that in all cases it is necessary to agree to donate freely and firmly in writing, and it is not permissible to donate from a child permanently, while Article Six prohibits the waiver by selling or buying any member of the body for a fee of any nature, and the specialist doctor is prohibited from starting any similar work Without considering the provisions of this law. Also, according to this law, it is not permissible to initiate the transfer without prior notification to the donor of the seriousness or damage of the operation to his health. As for donation after death, the law has stated in its article eight, “It is permissible for an imperative necessitated by preserving the life of a living person or treating him from a serious illness or completing a vital deficiency in his body, to transplant in it an organ or part of an organ or tissue from the body of a dead person, and that is Among the Egyptians, if the deceased was recommended to do so prior to his death by a will, notarized or affixed in any official paper, or he acknowledged that in accordance with the procedures specified by the executive regulations of this law.

It also listed the penalties[8] The consequence of violating the provisions of this law is between 7 years imprisonment and a fine of twenty to one hundred thousand pounds for those who perform the transplant in violation of this law, and the penalty is life, and a fine of 200 to one million pounds in the case of the death of the donor, as well as a fine of two hundred to three hundred thousand The levy of the one who carried out the planting currency in a place not designated for that, and the penalty is life in the event of the death of the donor, and the director in charge of the facility will be tried with the same penalty upon his knowledge of this.

• Fourth, trade in human organs in international charters and laws

International charters and conventions have adopted the issue of the sanctity of the body and stressed that it should not be traded in any way, including the trade of human organs, because it represents a great danger to the health and safety of the human body, and among those conventions is the United Nations Convention against Transnational Organized Crime[9] For the year 2000, and attached to it protocols on human trafficking, as well as the Optional Protocol to the Convention on the Rights of the Child on the sale of children and their exploitation in prostitution and in pornography for the year 2000, and in 1985 the World Medical Association for Health adopted a declaration on organ trafficking, by which it condemned the purchase and sale of implantable organs. This association adopted a new declaration on the transfer of organs in Madrid in October of 1988, in which it also prohibited the purchase and sale of human organs for transplantation.

In 1987 the European Council organized a conference of European Health Ministers regarding organ transplantation and the ban on trafficking in human organs and stressed the prohibition of waiver of any human organ for material motives, whether by an organization or bank for members or an institution or by individuals. Article 2 of the Unified Arab Law for Human Organ Transplantation (proposed by the Technical Committee in the Council of Arab Health Ministers in its session held in 1986) also stipulated that a person may donate or recommend one of his body parts. The donor or testator is required to be fully legally competent and that the donation (or will) be issued according to a written declaration signed by him to do so. The third article of the same bill stipulates that it is not permissible to transfer a body organ if it is the main member in life, even if it is with the consent of the donor. This trend was confirmed by the decisions of the fourth session of the Council of the Islamic Fiqh Council issued in February 1998, which stated in one of its texts: “It is forbidden to transfer an organ on which life depends, such as the heart, from a living person to another.”

The United Nations General Assembly issued a model law to combat trafficking in persons, during its ninth chapter it spoke about establishing a national coordination body on combating trafficking in persons.[10].

While Egypt was subject to the universal periodic review mechanism in 2014, the Egyptian government received a number of recommendations related to combating human trafficking. Rwanda recommended intensifying efforts to combat trafficking in persons, in cooperation with the international community, and Slovenia recommended broadening the understanding of the definition of trafficking in persons and integrating the existing approach. On human rights in policies aimed at eliminating trafficking in persons, Israel also recommended ensuring the effective implementation of the national plan to combat human trafficking, and Kazakhstan recommended continuing its national efforts aimed at combating trafficking in persons, including through international and regional cooperation, and the Philippines recommended ensuring the creation of a national database on trafficking While it recommended the Maldives to continue strengthening efforts to eliminate trafficking in persons in accordance with the national plan.

The second axis: the reality of trade in human organs in Egypt

• First, the reasons for the spread of the phenomenon

In the beginning, when a case of organ damage occurs in the human body, and there is a state of readiness for a family member or family or others to donate this organ, such as donating one of the kidneys, the donation process takes place in a legal and humanitarian framework, but the prevalence is the occurrence of damage to an organ in the human body, and there is no A donor, which leads to the spread of the need to purchase this organ, and therefore one of the reasons for the spread of this phenomenon, especially in recent times, is the increase in the number of patients in need of organs from patients around the world, in light of scientific and technical progress in medicine and the scientific achievements he has achieved in the transfer and transplantation of human organs[11] The large number of illegal children and street children, which makes them vulnerable to kidnappings, removal of organs, and often murder.

 As well as the spread of extreme poverty and the urgent need of individuals for money in light of the poor economic and social conditions that many suffer from, in addition to that, the presence of a large influx of Africans from the marginalized and fleeing poverty in their countries, and their entry into Egypt illegally makes them easy prey for this forbidden trade, regardless of their consent. After they were deluded with the ease of the operation and not affecting their health, or by misleading them, kidnapping them, removing their organs and then burying them.

• Second, statistics and figures regarding the phenomenon

Despite the lack of accurate information and statistics on the trade of human organs, due to the secrecy of its procedure in most cases, but in the report of the US State Department on human trafficking for the year 2016, the report clarified that Egypt is among the countries whose government has not committed to the minimum to protect victims of human trafficking. It goes to great lengths to meet those standards[12]. And in a report for the British Journal of Criminology[13]She explained that Egypt is one of the largest markets in the trade of human organs around the world. And in a report of the World Health Organization[14]She explained that Egypt is among the five countries that export the most to the trade of human organs, despite the difficulty of obtaining sufficient information on the phenomenon. She explained a study at Alexandria University[15] In 2013, some doctors found in the trade of human organs an opportunity to achieve easy financial gains, confirming that 78% of Egyptian donors suffer from a deterioration in their health status after surgery, while 73% suffer from weak abilities to perform jobs and difficult tasks that require effort. Arduous.

• Third, the effects of trafficking in human organs

1. The donor or the donor

The donor or the donor has many negative effects on his health and safety, as a result of causing a defect in the body, and may affect his movement and reduce his effort to prevent the deterioration of his health condition, and may also lead to death during or after the operation, and the process of removing the organ psychologically affects the person The donor, after he sacrificed one of his organs in exchange for money, suffered from physical pain that made him incapacitated, so he could not enjoy the money he had obtained, and he might even spend it on treatment.

2. Society and the state

Trafficking in human organs leads to the violation of a human right, and the countries that export human beings indirectly have a responsibility to participate in supporting organized crime instead of combating it, as well as the spread of secret diseases among members of society, especially the youth, which is reflected in their productive capacities, as well as increasing the burdens they bear. The state provides medical and social care to persons who are victims of the human organ trade. An imbalance in the economic balance as these human elements achieve enormous income in a short time, which may be deposited in the exporting country, thus disturbing the balance of social classes, as the middle class is wasted in the social structure, as well as an increase in the rate of inflation and its growth.

The third axis: the proposed recommendations to address trafficking in human organs

• First, recommendations regarding legislation

1. Intensifying the penalty for participation in the process of transferring human organs contained in Law 5 of 2010
2. The donation is limited to relatives only, and the article related to the permissibility of donating to non-relatives after the formation of a specialized committee, because it constitutes a legal loophole that foreigners use to obtain approval to donate, then they perform the sale and purchase process inside one of the private places in secret in violation of the law.
3. Approval and regulation of the legal process of transferring organs from the dead to the living.
4. Amending the Human Trafficking Law No. 64 of 2010 to include raising the ceiling for fines.
5. Considering Law 5 of 2010 related to regulating organ transfer, and 64 of 2010 regarding human trafficking in an integrated manner to ensure that there are no gaps or conflicts between the two laws.

• Second, recommendations related to institutional structure and mechanisms

1. Replacing the committee stipulated in Law 64 of 2010 with a permanent body with a dedicated technical secretariat,
2. Creating a special body to detect and track trafficking in human organs, and the authority has a set of powers that help it to uncover trade networks in human organs, so the members of this body must carry the judicial police that enables them to control members, brokers and subscribers of this crime, to prevent them from escaping punishment. This authority is also responsible for monitoring vital places that are likely to be a suitable environment for this trade, such as operating rooms in hospitals, and following up on patients' entry and exit records.
3. Excluding hospitals from organ transplant operations, establishing a specialized central place for the transfer of human organs only, and taking care of both the donor and the recipient, under the supervision of the Ministry of Health, and thus criminalizing any operation outside this place on the one hand, and on the other hand the elimination of the forbidden trade mafia that takes place inside hospitals With the help of department managers and some doctors.
4. Economic development and poverty eradication, as poverty is a strong motivation for some individuals to sacrifice a human organ in order to escape the specter of poverty.

• Third, recommendations related to awareness

1. The media, in all its fields, must carry out awareness campaigns about the danger of the members compromising the health of the donor, unless it is a donation without financial compensation.
2. Organizing educational seminars on the danger of organ trafficking by the Ministry of Health, in addition to clarifying the proper framework for the donation process, and clarifying the official government places in which to donate.
3. Organizing seminars to introduce the seriousness of human trafficking by civil society organizations, explaining the legislative frameworks to regulate the donation process stipulated in Egyptian laws, and clarifying the penalties that the law approved when violating its provisions.
4. The clerics from time to time clarify the big difference between donating and trading in organs, and explaining its prohibition and danger to health.

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[1] Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Trafficking in Persons for the Purpose of Removing Their Members Background Information Paper prepared by the Secretariat, Vienna, 2011, pp. 3, 4
[2]  To learn about the mechanism of donating human organs and its permissibility in Egyptian law, please review Law No. 5 of 2010 regarding the regulation of human organ transplantation.
[3] Murad Bin Ali Zureikat, Conference on Security, Democracy and Human Rights, Mu'tah University, The crime of trafficking in human organs, a working paper presented within the conference proceedings, Jordan, 2006
[4] The Egyptian Constitution of 2014, Chapter of Rights and Freedoms, Article 60
[5] The Egyptian Constitution of 2014, Chapter on Rights and Freedoms, Article 89.
[6] The Egyptian Constitution of 2014, Chapter on Rights and Freedoms, Article 61
[7] Law No. 5 of 2010 regarding the regulation of human organ transplantation, Article 2, it is not permissible to transfer any organ or part of an organ or tissue from the body of a living human being with the intention of transplanting it into the body of another human being except for a necessity required to preserve the life of the recipient or treat him from a serious disease, and provided that The transplant is the only way to meet this necessity, and the transfer does not expose the donor to a grave danger to his life or health. It is prohibited to transplant organs, parts, tissues or reproductive cells in a way that leads to mixing of lineages.
[8]Please see Law 5 of 2010 regarding the regulation of human organ transplantation, which includes all penalties for violating the provisions of the law.
[9] The Convention includes several protocols attached to it that deal with the issue of trafficking in human beings, children and women and their exploitation in many works, including trafficking in their organs. of the agreement.”
[10] For more, see: United Nations Office on Drugs and Crime, Model Law against Trafficking in Persons, Vienna, 2010, Chapter Nine, pp. 101-95
[11] For more, see, Murad Bin Ali Zureikat, Conference on Security, Democracy and Human Rights, Mu'tah University, The crime of trafficking in human organs, a working paper presented within the conference proceedings, Jordan, 2006, pp. 15-16
[12] US. Department of State Publication Office of the under secretary for civilian Security, Democracy, And Human Rights, Trafficking in Persons Report June 2016, printed by A / GIS / GPS, June 2016, p 160.
[13] For more information, BRIT. J. CRIMINOL, EXCAVATING THE ORGAN TRADE: AN EMPIRICAL STUDY OF ORGAN TRADING NETWORKS IN CAIRO, EGYPT
[14] Bulletin of the World Health Organization, The state of the international organ trade: a provisional picture based on integration of available information, http://www.who.int/bulletin/volumes/85/12/06-039370/en/
[15] For more see the link, http://www.albawabhnews.com/2257255