Draft recommendation
1The Parliamentary Assembly welcomes the preliminary
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.
Tabled by the Committee on Social Affairs, Health and Sustainable Development
In the draft recommendation, paragraph 1, replace the words "preliminary draft Council of Europe convention" with the following words:
"draft Council of Europe convention".
2The 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 of
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.
Tabled by Mr Ramón JÁUREGUI, Ms Meritxell BATET, Ms Delia BLANCO, Mr Arcadio DÍAZ TEJERA, Mr Antonio GUTIÉRREZ LIMONES
In the draft recommendation, paragraph 2, after the words “and use of tissues and cells”, add the following words:
“, except for European Union directives on the matter”.
3The 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.
Tabled by Mr Ramón JÁUREGUI, Ms Meritxell BATET, Ms Delia BLANCO, Mr Arcadio DÍAZ TEJERA, Mr Antonio GUTIÉRREZ LIMONES
In the draft recommendation, at the end of paragraph 3, add the following sentence:
“It will be possible to explain the convention more clearly with other additional documents, in particular the explanatory document to be appended to it.”
4With regard to the latter, 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 preliminary
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.
Tabled by the Committee on Social Affairs, Health and Sustainable Development
In the draft recommendation, paragraph 4, replace the words "preliminary draft convention" with the following words:
"draft convention".
Tabled by Mr Ramón JÁUREGUI, Ms Meritxell BATET, Ms Delia BLANCO, Mr Arcadio DÍAZ TEJERA, Mr Antonio GUTIÉRREZ LIMONES
In the draft recommendation, paragraph 4, after the first sentence, add the following sentence:
“However, this aim can be achieved with the explanatory document to be appended to the future convention."
5The Assembly underlines the utmost importance of protecting
vulnerable persons, in particular children (under the age of 18),
persons without (full) legal capacity and persons deprived of their
liberty.
Tabled by the Committee on Social Affairs, Health and Sustainable Development
In the draft recommendation, replace paragraph 5 with the following paragraph:
"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 for reasons either of their age (in the case of minors) or their mental incapacity. In this connection, it welcomes the provision in the draft convention defining any removal of organs without the free, informed and specific consent of the living donor as illicit. This is in line with the provisions of the Convention of the Human Rights and Biomedecine (Oviedo Convention), which prohibit any 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 intented 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."
6The 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.
7Given that organ trafficking occurs worldwide, extending beyond
the territory of the Council of Europe's member States, the Assembly
calls for the future convention to have 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.
Tabled by the Committee on Social Affairs, Health and Sustainable Development
In the draft recommendation, paragraph 7, replace the words "the Assembly calls for the future convention to have the broadest possible geographical scope" with the following words:
"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".
8Consequently, the Assembly recommends that the Committee of
Ministers:
8.1complete the provisions
of the preliminary 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 setting
up a system of presumed consent for the removal of organs from deceased
persons;
Tabled by Mr Jean-Yves LE DÉAUT, Mr Gérard BAPT, Ms Dzhema GROZDANOVA, Ms Foteini PIPILI, Ms Maria GIANNAKAKI, Mr Spyridon TALIADOUROS, Mr Hans FRANKEN, Mr Ludo SANNEN, Mr Dirk Van der MAELEN
In the draft recommendation, before paragraph 8.1, insert the following paragraph:
"include a provision whereby a human organ or a part thereof shall be defined as follows: a human body part that cannot regenerate and is essential to the integrity of the human body as a whole."
(If adopted, amendments 5, 12 falls)
Tabled by Mr Ramón JÁUREGUI, Ms Meritxell BATET, Ms Delia BLANCO, Mr Arcadio DÍAZ TEJERA, Mr Antonio GUTIÉRREZ LIMONES
In the draft recommendation, delete paragraph 8.1.
(Falls if amendment 17 is adopted)
Tabled by the Committee on Social Affairs, Health and Sustainable Development
In the draft recommendation, paragraph 8.1, replace the words "preliminary draft convention" with the following words:
"draft convention".
(Falls if amendment 17 is adopted)
Tabled by Mr Jean-Yves LE DÉAUT, Mr Gérard BAPT, Ms Dzhema GROZDANOVA, Ms Foteini PIPILI, Ms Maria GIANNAKAKI, Mr Spyridon TALIADOUROS, Mr Hans FRANKEN, Mr Ludo SANNEN, Mr Dirk Van der MAELEN
In the draft recommendation, paragraph 8.1, after the words, “for that trafficking, in particular”, insert the following words:
“by encouraging the parties to contribute, by all means at their disposal, to an increase in the supply of organs available for transplantation, in particular by seeking alternative methods and”.
8.2include 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;
8.3include a provision in the convention whereby the usual
dual criminality rule is not applicable, in order to combat “transplant
tourism”;
8.4include a provision in the convention prohibiting the
removal and use for transplantation purposes of organs from persons
deprived of their liberty, living or deceased;
Tabled by the Committee on Social Affairs, Health and Sustainable Development
In the draft recommendation, paragraph 8.4, replace the words "for transplantation purposes" with the following words:
"for transplantation or other purposes".
8.5include a provision in the convention according special
protection, including in matters of consent, to children (under
the age of 18) and persons without (full) legal capacity;
Tabled by the Committee on Social Affairs, Health and Sustainable Development
In the draft recommendation, delete paragraph 8.5.
Tabled by Mr Jean-Yves LE DÉAUT, Mr Gérard BAPT, Ms Dzhema GROZDANOVA, Ms Foteini PIPILI, Mr Spyridon TALIADOUROS
In the draft recommendation, after paragraph 8.5, insert the following paragraph:
“include a fifth sub-paragraph in Article 4 of the convention providing that there is presumed consent to removal if the living donor agrees to sign a contract for long-term medical follow-up;”
8.6provide for the convention to be opened for signature
by non-member States of the Council of Europe as soon as it has
been adopted;
Tabled by the Committee on Social Affairs, Health and Sustainable Development
In the draft recommendation, delete paragraph 8.6.
8.7provide for reporting requirements for the Parties, while
encouraging the committee of the parties (the monitoring body) to
carry out its duties bearing in mind the objective of ensuring that
the convention is stringently and effectively implemented;
Tabled by the Committee on Social Affairs, Health and Sustainable Development
In the draft recommendation, replace paragraph 8.7 with the following paragraph:
"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."
8.8decide on a roadmap for the preparation of the additional
protocol against trafficking in human tissues and cells.
Tabled by the Committee on Social Affairs, Health and Sustainable Development
In the draft recommendation, after paragraph 8.8, insert the following paragraph:
"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."
9The 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:
9.1the Convention on Human Rights
and Biomedicine (ETS No. 164) and its Additional Protocol concerning
Transplantation of Organs and Tissues of Human Origin (ETS No. 186);
9.2the Convention on Action against Trafficking in Human
Beings (CETS No. 197).
