CM/AS(2004)Rec1611 final ... Trafficking in organs in Europe - Parliamentary Assembly Recommendation 1611 (2003)

Ministers’ Deputies

CM Documents

CM/AS(2004)Rec1611-final 21 June 2004

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Trafficking in organs in Europe –

Parliamentary Assembly Recommendation 1611 (2003)

(Reply adopted by the Committee of Ministers on 16 June 2004 at the 888th meeting of the Ministers’ Deputies)

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1. The Committee of Ministers has noted with interest Parliamentary Assembly Recommendation (2003) 1611 on trafficking in organs in Europe. It shares the underlying concerns of the Assembly and has brought the Recommendation to the attention of member states. It has also communicated it to the European Health Committee (CDSP), the Committee of Experts on the Organisational Aspects of Co-operation in Organ Transplantation (SP-CTO), the ad hoc Committee on action against trafficking in human beings (CAHTEH), the European Committee on Crime Problems (CDPC) and the Steering Committee on Bioethics (CDBI). This reply is based on comments received from these Committees, as well as on Recommendation Rec(2004)7 of the Committee of Ministers on organ trafficking. In addition, the CDBI has made more specific comments – with which the Committee of Ministers concur – on certain aspects of the Assembly’s recommendations and these are appended to this reply.

2. In particular, the Committee of Ministers agrees with the opinion that in view of the diversity of standpoints in Europe concerning the conditions under which organ donation from living donors is acceptable, it must be left to domestic legislation to define these conditions within the framework set out in Article 10 of the Additional Protocol concerning the Transplantation of Organs and Tissues of Human Origin to the Convention on Human Rights and Biomedicine and with strict respect for the principle of free and informed consent as enshrined in the Convention on Human Rights and Biomedicine. In compliance with this principle, the Committee of Ministers also considers that in the case of prisoners and other persons deprived of their liberty, any donations must be subject to guaranteed absence of pressure, to be checked by the appropriate bodies independent of the prison authorities. In general, the Committee of Ministers considers that all transplant operations must be subject to strict supervision, enabling the public health authorities to ascertain the origin of every transplanted organ as well as the criteria for its allocation.

3. The Committee of Ministers welcomes the call to member states to sign and ratify the Convention on Human Rights and Biomedicine (ETS No. 164) and its Additional Protocol concerning the Transplantation of Organs and Tissues of Human Origin (ETS No. 186). It recalls that the Additional Protocol provides for transparency, prohibition of organ and tissue trafficking and of financial gain, and appropriate information for donors, recipients, health professionals and the public. States ratifying this instrument are also required to provide for appropriate sanctions in the event of infringement of its provisions.

4. The Committee of Ministers welcomes the Assembly’s call for a European strategy and increased international co-operation for combating organ trafficking. In this respect, the initiative begun by the Secretary General in 2002 to conduct a review concerning aspects of member states’ law and practice that may be relevant to organ trafficking may be helpful in identifying potential gaps that it would be useful now to redress notably through technical assistance programmes, in particular in member states that are called “donor countries”, subject to their agreement. At the same time the Committee of Ministers supports the appeal to all member states, including countries considered as “donors”, “beneficiaries” or “of transit”, to adopt or strengthen legislative or other measures, such as information campaigns, educational, social or cultural measures, to raise the awareness of the media and the civil society to the problem and to discourage the demand that fosters and leads to organ trafficking.

5. The Council of Europe has put great emphasis over the years on giving assistance to member states to meet its standards in the area of organ transplantation. To give guidelines to Member States in the setting up of an appropriate transplant system, the Committee of Ministers has adopted a number of Recommendations, for example Recommendation (2001) 5 on waiting lists and waiting times or more recently Recommendation (2003) 12 on organ donor registers. Measures to combat organ trafficking will continue in the framework of the 2004 programme of activities, in particular the CDSP will be submitting to the Committee of Ministers a draft recommendation on ways and means to minimise the risk of organ trafficking.

6. The Committee of Ministers agrees that the elaboration of a draft Additional Protocol on trafficking of organs and tissues of human origin is one possibility that could be considered at a later stage.

Appendix to reply

Comments of the CDBI on certain specific recommendations of the Assembly

1. With regard to the recommendations of the Assembly within its field of competence, the CDBI welcomes the recommendation that the Committee of Ministers ask member states to sign and ratify the Convention on Human Rights and Biomedicine, and its Additional Protocol concerning the Transplantation of Organs and Tissues of Human Origin. The CDBI is also grateful to the Assembly for highlighting aspects of those instruments, for example an approach based on transparency (paragraph 14(iv)f) and the promotion of donation after death (paragraph 14(iv)d and e). Many of the principles concerning transplantation included in those instruments are also reflected in the Statement of the World Medical Association on Human Organ Donation and Transplantation to which the Assembly refers, and the CDBI also therefore welcomes those aspects of the Statement.

2. The CDBI recognises the concern of the Assembly regarding the potential for coercion with respect to prisoners and other individuals in custody in respect of transplantation. This concern is also highlighted in the Statement of the World Medical Association referred to in paragraph 1 above. The CDBI is opposed to any form of coercion, which would be against the principle of free and informed consent set out in the Convention on Human Rights and Biomedicine. However, both the Assembly and the Statement suggest that such persons may only donate to their “immediate family”. The CDBI also notes the Assembly’s concern regarding laws that allow greater scope for unrelated living donation, and its invitation to States to maintain strict laws in this respect. The CDBI is aware that opinions differ across Europe regarding the conditions under which living donation is acceptable, and that this issue was intensively debated (including by the Assembly) during the development of the Additional Protocol concerning Transplantation of Organs and Tissues of Human Origin. The CDBI concluded that a person able to consent should be able to donate to a person with whom they have a close personal relationship as defined by law (for example, an unmarried partner) without the need for additional forms of authorisation; or in the absence of such a relationship under conditions prescribed by law and with the approval of an appropriate independent body. These conclusions are reflected in Article 10 of the Additional Protocol concerning the Transplantation of Organs and Tissues of Human Origin.

3. The CDBI regards prisoners and other persons in custody as vulnerable people. Therefore, donation from such persons should be exceptional: in addition to the conditions specified above, it might be advisable to foresee additional specific safeguards, in particular to ensure the absence of coercion.

4. While the CDBI would be pleased to engage in discussions concerning additional safeguards to avoid coercion or the risk of trafficking, it does not consider that further restriction of the right to donate to a person with whom an individual has a close personal relationship is necessarily appropriate. Taking in to account modern social situations, it would suggest that any future instrument draws distinctions on the basis of close personal relationships rather than blood relationships.