Organ Transplantation

Organ transplantation is the moving of an organ from one body to another, for the purpose of replacing the recipient’s damaged or absent organ. Organs that can be transplanted are the heart, kidneys, liver, lungs, pancreas, intestine, and thymus. Worldwide, the kidneys are the most commonly transplanted organs, followed closely by the liver and then the heart. The cornea and musculoskeletal grafts are the most commonly transplanted tissues; these outnumber organ transplants by more than tenfold.

While the procedure may be beneficial, and often live-saving, for the recipient, it nevertheless raises a number of serious concerns:

• the concern that the organs to be transplanted could be obtained from people without their consent. For example, in China most of the organs used for transplantation stem from prisoners who have been sentenced to death. Allegedly, it even occurs that executions take place, and death sentences are issued, in function of demands for transplantable organs (including from outside China).

• the concern that the practice of organ transplantation could give rise to a “transplantation tourism” from rich to poor countries: poor people might be pressured to sell one or more of their organs, or even those of their children, in order to get some money.

• the concern that, where the organ to be transplanted is obtained from a deceased “donor” (as is necessarily the case when a liver or a heart is transplanted), the donor might in fact still be living when the organs are removed, making the removal of the organs the true cause of his death. There are widespread doubts in the scientific community with regard to the criterion of “brain death”, a criterion that has been developed precisely with the intention of increasing the availability of donor organs for transplantation.

• the concern over rampant corruption among those who have the power to decide who should enjoy priority in receiving an organ transplantation. (Recent revelations in Germany have shown that it is a frequent practice among transplantation doctors to accept bribes in return for manipulating the waiting lists of possible recipients of donated organs. If those on the waiting list are considered to hold some kind of “entitlement” to an donated organ, then it could be argued that those manipulations were tantamount to murder: the live-saving organ that was given to one patient was withheld from the other…)

With regard to the first two points, it is self-evident that taking organs from people without their consent is an extremely serious violation of human dignity as well as of the right to bodily integrity. As we have pointed out before, such practices are similar both to cannibalism and to slave trade.

While the moral principle appears to be widely recognized, the protection offered by international law seems weak. The availability of transplantation surgery has created a demand for donated organs, and as this type of surgery is increasingly seen as a standard therapy this demand is likely to increase. Already now, politicians dealing with public health deplore the “lack of organ donations” and seek ways to increase them, including, in some countries, by establishing (rather questionable) legal presumptions that anyone who does not object is to be considered a presumptive “donor”. By contrast, there is not a similar concern for the rights of the persons from whom the “donated” organs are obtained.

The Oviedo Convention of the Council of Europe appears to be the only international treaty worldwide to deal with the issue of organ donation, but the requirements it establishes for “consent” seem rather weak (see above). In addition, a number of Council of Europe Member States have neither signed nor ratified this Convention. The explicit provision that “the human body and its parts shall not, as such, give rise to financial gain” (Article 21 of the Oviedo Convention) applies thus only to a small number of countries. But even assuming that there were world-wide agreement on this rule, there would still be a need to step up global efforts to prevent trafficking.

With regard to the increasing doubts around the “brain death” criterion it should be noted that this criterion should be made the subject of a renewed scientific debate. In the meantime, however, a precautionary principle leads us to consider that “brain death” is not an apt criterion, and that the removal of transplantable organs from “brain dead” people is in fact a morally unacceptable practice.