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Recommendation 2009 (2013) Final version
Towards a Council of Europe convention to combat trafficking in organs, tissues and cells of human origin
1. The Parliamentary Assembly welcomes
the draft Council of Europe convention against trafficking in human
organs. Closely associated with the preparation of the convention
from the outset, the Assembly considers that this text represents
the culmination of several years of efforts by the Council of Europe
in the field of organ trafficking.
2. The Assembly notes that, at this stage, it has not been considered
advisable to prepare an additional protocol against trafficking
in human tissues and cells, largely due to the absence at both national
and international levels of complete and harmonised regulation regarding
the removal and use of tissues and cells. It nevertheless emphasises
that, like organ trafficking, the trafficking of tissues and cells
of human origin constitutes a grave threat to human rights and to
public and individual health.
3. The Assembly points out that, once it has been adopted, the
convention will be the first legally binding international instrument
devoted solely to organ trafficking. This is why the Assembly takes
the view that the convention must be as complete as possible in
order to prevent and combat this worldwide phenomenon which contravenes
the most basic standards in terms of human rights and human dignity.
4. In this context, the Assembly notes that questions relating
to the prevention of organ trafficking, the protection of victims
and national and international co-operation to combat such trafficking
are not sufficiently detailed in the draft convention. It also notes
that the draft leaves States complete freedom to decide whether donors
and recipients may be prosecuted when they are involved in organ
trafficking. Whatever position member States may take on this matter,
the Assembly argues that these two categories of persons, because of
the specific nature of their situation, which can sometimes be summed
up as a matter of life or death, may find themselves extremely vulnerable.
5. The Assembly underlines the utmost importance of protecting
vulnerable persons, in particular persons deprived of their liberty
and persons who are unable to give full and valid consent to an
intervention due to either their age (in the case of minors) or
their mental incapacity. In this connection, it welcomes the provision in
the draft convention defining as illicit any removal of organs without
the free, informed and specific consent of the living donor. This
is in line with the provisions of the 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 Biomedecine (ETS No. 164, “Oviedo Convention”), which prohibit
organ removal from persons who do not have the capacity to consent,
thereby affording special protection to that group of persons. The Assembly
notes that, while it is possible for States to reserve the right
not to apply this article, such a reservation would be accepted
only in exceptional cases and in accordance with appropriate safeguards
or consent provisions under their domestic law. The possibility
of making a reservation is intended to facilitate access to the
convention for States whose legislation is less restrictive than
the principles set out in the Oviedo Convention in relation to consent,
while respecting the fundamental rights of the persons concerned.
6. The Assembly notes with concern the practice followed by certain
patients who travel abroad in order to obtain organs in return for
payment, a practice widely referred to as “transplant tourism”.
In this context, it is particularly concerned about allegations
that some States which are not members of the Council of Europe trade
organs removed from prisoners and from executed detainees.
7. Given that organ trafficking occurs worldwide, extending beyond
the territory of the Council of Europe's member States, the Assembly
welcomes the provision made in the draft convention for its opening
to signature by States that are not members of the Council of Europe,
even prior to its entry into force, which will foster the broadest
possible geographical scope. It also emphasises the importance of
stringent and effective implementation of the convention, so that
it can bring the desired added value to the work of the Council
of Europe.
8. Consequently, the Assembly recommends that the Committee of
Ministers:
8.1. complete the provisions
of the draft convention relating to measures for the prevention
of organ trafficking, the protection of victims and national and
international co-operation against such trafficking, paying particular
attention to measures to deal with the shortage of organs which
is one of the main reasons for that trafficking, in particular by
encouraging the parties to contribute, by all means at their disposal,
to an increase in the supply of organs available for transplantation,
including by seeking alternative methods and by setting up a system
of presumed consent for the removal of organs from deceased persons;
8.2. include a provision in the convention on “mitigating circumstances”
which includes, inter alia,
the consideration of the particular vulnerability of organ donors
and/or recipients who have committed the offences established in
the convention, or refer to that particular vulnerability in the
explanatory report to the convention, specifying that it should
be taken into account when the penalties which may be applicable
to these two categories of persons are determined;
8.3. include a provision in the convention whereby the usual
dual criminality rule is not applicable, in order to combat transplant
tourism;
8.4. include a provision in the convention prohibiting the
removal and use for transplantation or other purposes of organs
from persons deprived of their liberty, living or deceased;
8.5. provide for an independent, strong and effective committee
of the parties assigned a clear function of co-ordination and monitoring
on the basis, inter alia, of
reporting requirements for the parties, while entrusting the competent
committees – the European Committee on Crime Problems (CDPC) and the
Committee of Bioethics (DH-BIO) – with a role in supervising the
convention's implementation;
8.6. decide on a roadmap for the preparation of the additional
protocol against trafficking in human tissues and cells;
8.7. call on those member States wishing to reserve the right
not to apply the provision defining as illicit any removal of organs
without the free, informed and specific consent of the living donor
to instead revise their legislation in order to bring it into line
with this provision and the Oviedo Convention.
9. The Assembly also recommends that the Committee of Ministers
urge those member States which have not yet done so to sign and
ratify the other two Council of Europe conventions which relate
to the combating of trafficking in human organs, namely:
9.1. the Convention on Human Rights
and Biomedicine and its additional protocol concerning the transplantation
of organs and tissues of human origin (ETS No. 186);
9.2. the Council of Europe Convention on Action against Trafficking
in Human Beings (CETS No. 197).