Combating Illegal Organ Transplantation Under International Human Rights Law

Despite the fact that the concepts of organ transplantation and organ trafficking seem two completely distinct categories at first glance, sometimes they overlap with each other. This is especially in cases in which organ transplantation occurs from one country to another and for a financial exchange. There are two general indicators for determining the distinction between organ transplantation and organ trafficking. First, donor consent is one of the principles in medical and law sciences that demonstrates willingness. The consent of donor may be announced in two assumptions of informed consent(explicit) and presumed consent. Second, the prohibition of granting privileges generally prevents allurement and threatening of donors. These privileges are limited to financial concessions. Not only non-financial privileges are not prohibited, but also are accepted by some countries. The present article, through a descriptive-analytic method and by applying a human rights approach, attempts to determine the legal boundaries between organ transplantation and organ trafficking and investigate combating transplant tourism under human rights rules and norms as well. In addition to human rights instruments to the effect of prohibiting this phenomenon, the act of organ trafficking implicates some of human rights principles including right to life, non-discrimination and prohibitions of torture and slavery. The basic assumption of the article is based on this issue that commission of organ trafficking and human trafficking for organ removal are regarded as international crimes in cases in which part of the acts or their effects extend to another country and these acts, subject to fulfillment of other conditions, fall within the jurisdiction of ICC under titles such as crimes against humanity, genocide and war crimes.