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Transnational crimes related to health: How should the law respond to the illicit organ tourism?

Published online by Cambridge University Press:  02 January 2018

Sheelagh McGuinness  and
Jean V McHale
Sheelagh McGuinness*
Affiliation:
Birmingham Law School
Jean V McHale
Affiliation:
Birmingham Law School
*
Sheelagh McGuinness and Jean V McHale, Centre for Health Law, Science & Policy, Birmingham Law School, University of Birmingham, Edgbaston, Birmingham B15 2TT, UK. Email: s.mcguinness@bham.ac.uk; j.v.mchale@bham.ac.uk
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Abstract

In this paper, to paraphrase Scheper-Hughes, we explore the contested legalities and illegalities of medical tourism. Increasingly, individuals are travelling outside of their home jurisdiction to access health services. This may be for a range of reasons: for speed, for cheapness or in some cases to bypass criminal restrictions at state level. This paper explores those who fall into the latter category and who travel to avoid statutory or regulatory prohibitions in relation to certain clinical procedures in England and Wales. In this paper, we consider the appropriate legal response to illicit transplant tourism. We examine the legitimacy of using extra-territorial jurisdiction to enforce the ban on the commercial trade in organs found in the Human Tissue Act 2004. We suggest that this, along with the recent Draft Council of Europe Convention against Trafficking in Human Organs, provide an effective response to the transnational crime of illicit organ tourism.

Information

Type
Research Article
Information
Legal Studies , Volume 34 , Issue 4 , December 2014 , pp. 682 - 708
Copyright
Copyright © Society of Legal Scholars 2014

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Footnotes

*

We would like to thank John Coggon, Rob Cryer, Marie Fox, John Harrington and Stephen Latham for comments on previous drafts of this paper. We are also grateful to audiences at the Current Legal Issues Conference 2012 and the WG Hart Legal Workshop 2012 for discussion on the presentation of previous drafts of this paper.

References

Notes

1. Roberts, Efs and Scheper-Hughes, N ‘Introduction: medical migration’ (2011) 17 Body & Soc'y 1.Google Scholar

2. Bennett, B Health Law's Kaleidoscope: Health Law Rights in Global Age (Aldershot: Ashgate, 2008) ch 8: ‘Health rights and health tourism’.Google Scholar

3. Chen, Yyb and Flood, Cm ‘Medical tourism's impact on health care equity and access in low- and middle-income countries: making the case for regulation’ (2013) 41 J L Med & Ethics 286–300;Google Scholar Benetar, S and Broack, G (eds) Global Health and Global Heath Ethics (Cambridge: Cambridge University Press, 2011) s II.CrossRefGoogle Scholar

4. Harrington, J ‘Migration and access to health care in English medical law: a rhetorical critique’ (2009) 4 Int'l J L Context 315.Google Scholar

5. ‘Towards a Council of Europe Convention to combat trafficking in organs, tissues and cells of human origin’ (2013), available at http://assembly.coe.int/ASP/XRef/X2H-DW-XSL.asp?fileid=19236&lang=EN (accessed 23 January 2013).

6. Human Tissue Act 2004, s 32; see also McHale, JV ‘Organ transplantation, the criminal law and the health tourist: a case for extra-territorial jurisdiction?’ (2013) 22(1) Camb Q Healthcare Ethics 64–76.Google Scholar

7. Foster, T ‘Trafficking in human organs: an emerging form of white-collar crime?’ (1997) 41 Int J Offender Ther Comp Criminol 139; for a discussion of the nature of transnational criminal law, seeGoogle Scholar Boister, N An Introduction to Transnational Criminal Law (Oxford: Oxford University Press, 2012) pp 4–7, 123.CrossRefGoogle Scholar

8. Meyer, S ‘Trafficking in human organs in Europe: a myth or an actual threat?’ (2006) 14 Eur J Crime Crim L & Crim Just 209.Google Scholar

9. Ambagtsheer, F, Zaitch, D and Weimar, W ‘The battle for human organs: organ trafficking and transplant tourism in a global context’ (2013) 14 Global Crime 1–26.Google Scholar

10. Foster, above 7; Meyer, above 8.

11. Turner, L ‘ “Medical tourism” initiatives should exclude commercial organ transplantation’ (2008) 101 J R Soc Med 391.Google Scholar

12. N Lunt et al ‘Medical tourism: treatments, markets and health system implications: a scoping review’ (OECD, 2011), available at http://www.oecd.org/dataoecd/51/11/48723982.pdf (accessed 24 January 2013).

13. Pande, A ‘Transnational commercial surrogacy in India: gifts for global sisters’ (2011) 23 Reprod Biomed Online 624, quotingGoogle Scholar F Shenfield ‘Is cross-border reproductive care a problem and for whom?’ (2009) Bionews Online, available at http://www.bionews.org.uk/page_47257.asp/ (accessed 17 November 2013).

14. Turner, L ‘ “First World health care at Third World prices”: globalization, bioethics and medical tourism’ (2007) 2 Biosocieties 308.Google Scholar

15. Ibid; see also Chen and Flood, above 3.

16. Case C-372/04 R (on the application of Watts) v Bedford Primary Care Trust, Secretary of State for Health [2006] ECR I-4325; Watts v UK [2010] ECHR 793 (4 May 2010); R (on the application of Watts) v Bedford Primary Care Trust, Secretary of State for Health [2006] ECR I-4325; SPUC v Grogan Case C-159/90 Case C-159/90, available at http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&numdoc=61990J0159 (accessed 17 November 2013); Bois-Pedain, A ‘Seeking healthcare elsewhere’ (2007) Camb L J 66;Google Scholar Davies, G ‘The effect of Mrs Watts' trip to France on the National Health Service’ (2007) 18 Kings L J 160;Google Scholar McHale, Jv ‘The right to medical treatment in Eu law’ (2007) 15 Med L Rev 99;Google Scholar Lawson, R ‘The Irish abortion cases: European limits to national sovereignty?’ (1994) 1 Eur J Health L 167.Google Scholar

17. Fenton, R ‘Catholic doctrine versus reproductive rights: the new Italian law on assisted reproduction’ (2006) 14 Med L Rev 73.Google Scholar

18. See further Suicide Act 1961, s 2 (1); A Local Authority v Z [2005] 1 FLR 740; R (Purdy) v DPP (2009) UKHL 45; Hirst, M ‘Assisted suicide after Purdy: the unresolved issue’ (2009) 12 Crim L Rev 870–876;Google Scholar Nobles, R and Schiff, D ‘Disobedience to law – Debbie Purdy's case’ (2010) 73 Mod L Rev 295;Google Scholar Greasley, K ‘ R(Purdy) v Dpp and the case for wilful blindness’ (2010) Oxford J L Stud 301.Google Scholar

19. ‘They queue to donate their eggs and rent out their wombs. One payment can transform their lives’ Daily Telegraph 26 May 2012, available at http://www.telegraph.co.uk/health/healthnews/9291913/They-queue-to-donate-their-eggs-and-rent-out-their-wombs.-One-payment-can-transform-their-lives.html (accessed 17 November 2013).

20. Surrogacy Arrangements Act 1985, s 2.

21. A Gentleman ‘India nurtures business of surrogate motherhood’ New York times 10 March 2008, available at http://www.nytimes.com/2008/03/10/world/asia/10surrogate.html (accessed 24 January 2013). It is interesting to note that the Indian government has recently issued guidelines limiting surrogacy only to those couples who have been married for more than 2 years and who are from a country where commercial surrogacy is legal: see N Haxton ‘India cuts off commercial surrogacy to many Australians’, available at http://www.abc.net.au/am/content/2013/s3669598.htm (accessed 24 January 2013).

22. The only country with a regulated market in organs is Iran. It should be noted that sale of organs to foreigners is prohibited in Iran, specifically in order to prevent transplant tourism. However, foreigners can receive a transplant in Iran provided that both the donor and the recipient are from the same country. In the latter situations, the transplant must be authorised by the Ministry of Health Center for Management of Transplantation. See further Ahad, J et al ‘Organ transplantation in Iran’ (2007) 18 Saudi J Kidney Dis Transpl 648.Google Scholar

23. Akoh, Ja ‘Key issues in transplant tourism’ (2012) 2 World J Transpl 9.Google Scholar

24. Turner, above 11, at 391.

25. For a discussion of the criticisms of ‘commercialism’ and ‘trafficking’, see Ambagtsheer et al, above 9.

26. Resolution WHA 40.13 on the development of guiding principles for human organ transplants adopted by the 40th World Health Assembly in May 1987. See also WHO Guiding Principles on Human Organ Transplantation, endorsed by the World Health Assembly in 1991.

27. Resolution adopted by the 57th World Health Assembly, 22 May 2004, WHA57/18.

28. Pfeffer, N ‘Eggs-ploiting women: a critical feminist analysis of the different principles in transplant and fertility tourism’ (2011) 23 Reprod Biomed Online 634. Pfeffer notes that ‘since it was agreed upon the once thriving kidney bazaars in Pakistan have been closed and the Philippine government has introduced regulations aimed at preventing the country from becoming a destination of transplant tourism’.Google Scholar

29. See further ‘Japanese flock to China for organ transplants’ Asia Times Online 4 April 2006, available at http://www.atimes.com/atimes/China/HD04Ad01.html (accessed 24 January 2013). See also discussion in Joint Council of Europe/United Nations Study Trafficking in Organs, Tissues and Cells and Trafficking in Human Beings for the Purpose of the Removal of Organs (Directorate General of Human Rights and Legal Affairs, Council of Europe, 2009).

30. Alcorn, T ‘China's organ transplant system in transition’ (2011) 377 Lancet 1905.Google Scholar

31. See http://www.medindia.net/indian_health_act/The_Transplantation_of_Human_Organs_Act_1994/list-of-acts.htm (accessed 30 January 2013).

32. D Campbell and N Davison ‘Illegal kidney trade booms as new organ is sold every hour’ The Guardian 28 May 2012, available at http://www.guardian.co.uk/world/2012/may/27/kidney-trade-illegal-operations-who (accessed 24 January 2013).

33. 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 Biomedicine, ch VII, available at http://conventions.coe.int/Treaty/en/Treaties/Html/164.htm (accessed 25 July 2013).

34. Parliamentary Assembly Recommendation 1611 (2003) on trafficking in organs in Europe, available at http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta03/EREC1611.htm (accessed 24 January 2013).

35. CETS No 186, and see also Parliamentary Assembly Recommendation 1611 (2003) on trafficking in organs in Europe; Committee of Ministers Recommendation (2004) 7 to Member States on organ trafficking. See also Asian Task Force on Organ Trafficking Recommendation on the Prohibition, Prevention and Elimination of Organ Trafficking in Asia, cited in Joint Council of Europe/United Nations study 2009, above 29.

36. See Watson, R ‘European Parliament tries to stamp out trafficking in human organs’ (2009) 327 BMJ 1009; Communication from the Commission to the European Parliament and Council Organ Donation and Transplantation: Policy Action at EU Level, COM (2007) 275 final, 30 May 2007; Resolution of the European Parliament of 22 April 2008, Res 2007/2210 on organ donation and transplantation; Action Plan on Organ Donation and Transplantation: Strategic Co-operation between Member States SEC 2008-2956, Brussels, 8 December 2008 (COM 2008, 819/3); Directive 2010/45/EC of the European Parliament and of the Council of 7 July 2010 on Standards of Quality and Safety of Human Organs Intended for Transplantation, OJ L 2007, 6 August 2010.Google Scholar

37. This article concerns the integrity of the person.

38. See further McHale, J ‘Fundamental rights and health care’ in Mossialos, E et al (eds) Health Systems Governance in the EU (Cambridge: Cambridge University Press, 2010).Google Scholar

39. Directive 2010/45/EU of the European Parliament and of the Council of 7 July 2010 on standards of quality and safety or human organs intended for transplantation, Preamble, para 7 (emphasis added).

40. Ibid, para 19.

41. For a discussion of the the EU's approach to regulation in this area, see Bache, G, Flear, Ml and Hervey, Tk ‘The defining features of the European Union's approach to regulating new health technologies’ in Flear, M et al (eds) European Law and New Health Technologies (Oxford: Oxford University Press, 2013).Google Scholar

42. See generally Blood Safety Directive, Directive 2002/98/EC. Tissue Directive (2004), Directive 2004/23/ECl; for a discussion of the background to the Tissue and Cells directive, see Hervey, Tk and McHale, Jv Health Law and the European Union (Cambridge: Cambridge University Press, 2004) pp 421–426;CrossRefGoogle Scholar Farrell, Am ‘Adding value? Eu governance of organ donation and transplantation’ (2010) 17 Eur J Health L 51.Google Scholar

43. Tissue Directive, above 42, preamble, para 19.

44. Laws relating to child sex abuse are a notable example of an offence that exists to protect individuals in other countries; see Sexual Offences Act 2003, s 72.

45. For a discussion of the relationship between harm and criminal law, see Feinberg, J The Moral Limits of the Criminal Law Volume 1: Harms to Others (Oxford: Oxford University Press, 1987).CrossRefGoogle Scholar

46. An overview of the literature highlights a divide between those who focus on the purchasing power of these individuals as opposed to those who focus on the cultural factors that may cause people to travel. See, for example, the distinction between the representation of buyers in Ambagtsheer et al, above 9, as opposed to Scheper-Hughes, N ‘Commodity fetishism in organs trafficking’ (2001) 7 Body & Soc'y 31–62. It could that the difference is evidence of distinct communities of buyers and the difference highlights the heterogeneity of this group.Google Scholar

47. ‘Black market for body parts spreads among the poor in Europe’ New York times 28 June 2012, available at http://www.nytimes.com/2012/06/29/world/europe/black-market-for-body-parts-spreads-in-europe.html?pagewanted=all&_r=0 (accessed 20 June 2013).

48. Cronin, A et al ‘Solving the kidney transplant crisis for minority ethnic groups in the UK: is being transplanted overseas the answer?’ in Willem, W, Bos, M and Busschbach, J. (eds) Organ Transplantation: Ethical, Legal and Psychosocial Aspects. Expanding the European Platform vol II (Lengerich: Pabst, 2011) pp 62–72;Google Scholar Ambagtsheer et al, above 9, pp 15–17.

49. Ambagtsheer et al, above 9, pp 15–17. See also Cronin et al, above 48.

50. Cronin et al, ibid.

51. Ambagtsheer et al, above 9, pp 15–17; Cohen, IG ‘Transplant tourism: the ethics and regulation of international markets for organs’ (2013) 41 J L Med & Ethics 269–285.Google Scholar

52. See eg Cohen, ibid.

53. ‘Kidney patients add to risk by having transplants abroad’ The Independent 22 August 2010.

54. Gill, J et al ‘Transplant tourism in the United States: a single-center experience’ (2008) 3 Clin J Am Soc Nephrol 1820.Google Scholar

55. See Cohen, above 51; Chen and Flood, above 3.

56. Goyal, M et al ‘Economic and health consequences of selling a kidney in India’ (2002) 288 J Am Med Assoc 1589;Google Scholar Garwood, P ‘Dilemma over live-donor transplantation’ (2007) 85 Bull WHO 5.Google Scholar

57. See generally Wilkinson, S Bodies for Sale: Ethics and Exploitation in the Human Body Trade (Oxford: Routledge, 2003) ch 6, pp 126–132.Google Scholar

58. See Scheper-Hughes, above 46; Moniruzzaman, M ‘ “Living cadavers” in Bangladesh: bioviolence in the human organ bazaar’ (2012) 26 Med Anthrop Q 69–91.Google Scholar

59. Cohen, L ‘Where it hurts: Indian material for an ethics of organ transplantation’ (1999) 128 Daedalus 135–165.Google Scholar

60. Cohen, L ‘The other kidney: bipolitics beyond recognition’ in Scheper-Hughes, N and Wacquant, L (eds) Commodifying Bodies (London: SAGE, 2002) pp 9–30.CrossRefGoogle Scholar Discussed in Pfeffer, above 28, at 638.

61. In 2003, a report of the Council of Europe Parliamentary Assembly noted that trafficking networks targeted poorer European countries such as Estonia, Bulgaria, Georgia, Russia, Moldavia, Romania and the Ukraine, and pressurised people into selling kidneys: see further Council of Europe ‘Trafficking in organs in Europe’ (2003); see also discussion in Wilkinson, above 57, 105.

62. Veatch, R ‘Why liberals should accept financial incentives for organ procurement’ (2003) 13 Kennedy Inst Ethics J 19; for a convincing rebuttal of such an argument,Google Scholar see Cohen, above 59, at 135.

63. Cf Nozick, R Anarchy, State, and Utopia (New York: Basic Books, 1974), particularly Part III.Google Scholar

64. See Held, Virginia's critcisms of this in ‘ Non-contractual society: a feminist view ’ in Hanen, M and Nielsen, K (eds) Science, Morality & Feminist Theory (Calgary: University of Calgary Press, 1987).Google Scholar

65. Chen and Flood, above 3, p 288.

66. Ibid.

67. Atiyah, Ps Essays on Contract (Oxford: Clarendon Press, 1986) Essay 6. An example of such a restriction is the prohibition on organ sales found in the Human Tissue Act 2004. This demonstrates that we already restrict this particular freedom to contract at a domestic level. Therefore, it is hypocritical to allow transnational sales to go unpunished, particularly when such sales may take place in a context with even greater propensity for harm than that domestically.Google Scholar

68. Goyal et al, above 56.

69. See discussion in Dickenson, D Body Shopping: Converting Body Parts to Profit One World (Oxford: Oxford University Press, 2008) p 154.Google Scholar

70. Steering Committee of the Istanbul Summit ‘Organ trafficking and transplant tourism and commercialism: the Declaration of Istanbul’ (2008) 372 Lancet 5.

71. The Declaration of Istanbul on Organ Trafficking and Transplant Tourism (2008) Principle 6.

72. See Widdows, H ‘Rejecting the choice paradigm: rethinking the ethical framework in prostitution and egg sale debates’ in Madhok, S, Phillips, A and Wilson, K (eds) Gender, Agency and Coercion (Basingstoke: Palgrave, 2013).Google Scholar

73. Bagheri, A ‘Asia in the spotlight of the international organ trade: time to take action’ (2007) 2 Asian J WTO & Int'l Health L & Pol'y 11.Google Scholar

74. Batos, B ‘The wrong way to equality: privileging consent in the trafficking of women for sexual exploitation’ (2004) 27 Harvard Women's L J 137.Google Scholar

75. Devereaux, M and Lorings, Jf ‘A modest proposal in response to Rhodes and Schiano’ (2010) 10 Am J Bioethics 20;Google Scholar Meyer, above 8, 209.

76. For further discussion of this possible harm, see Turner, L ‘Transnational medical travel: ethical dimensions of global healthcare’ (2013) 22 Camb Q Healthcare Ethics 170.Google Scholar

77. Lunt et al, above 12. Similarly, the US Organization for Transplant Professionals (NATCO) suggests that ‘In accordance with the NATCO Code of Ethics all transplant personnel must maintain the highest standard of professional conduct and act to protect the health and safety of organ donors and recipients. Organ tourism is not in harmony with these goals thus NATCO condemns this practice.’ See http://www.natco1.org/Advocacy/files/Organ%20Tourism.pdf (accessed 22 June 2012).

78. Ibid.

79. Dixon, M Textbook on International Law (Oxford: Oxford University Press, 6th edn, 2007) ch 1;Google Scholar Boister, N An Introduction to Transnational Criminal Law (Oxford: Oxford University Press, 2012) pp 17–23.CrossRefGoogle Scholar

80. Lunt et al, above 12.

81. ‘Recommendations on the prohibition, prevention, and elimination of organ trafficking in Asia’ (Asian Center for WTO and International Health, Law, and Policy, 2008), available at http://www.law.ntu.edu.tw/center/wto/04research.asp?tb_index=403 (accessed 23 January 2010).

82. Chen and Flood, above 3, at 288–291.

83. R v Tuck (2007); ‘Body parts sale man avoids jail’ Bbc News, available at http://news.bbc.co.uk/1/hiu/england/west_midlands/6646467.stm (accessed 24 January 2013).

84. ‘Organ trafficking: Dutch to lead international inquiry’ Bbc News, 16 December 2012), available at http://www.bbc.co.uk/news/world-europe-20354401 (accessed 24 January 2013). Geographically, this is not always the case – individuals from Japan and Taiwan have long been known to travel to China to access organs: ‘Japanese flock to China for organ transplants’ Asia times Online 4 April 2006), available at http://www.atimes.com/atimes/China/HD04Ad01.html; (accessed 17 November 2013). However, the socio-economic tone rings through in both cases: P Lewis ‘The doctor at the heart of Kosovo's organ scandal’ The Guardian 17 December 2010, available at http://www.guardian.co.uk/world/2010/dec/17/kosovo-medicus-organ-clinic (accessed 24 January 2013).

85. Moniruzzaman, above 58; ‘S African hospital group pleads guilty in organ scandal’ Bbc News, 10 November 2012, available at http://www.bbc.co.uk/news/world-africa-11725536 (accessed 24 January 2013).

86. Foster, above 7, p 143.

87. Passas, N ‘Globalization, criminogenic asymmetries and economic crime’ (1999) 1 Eur J L Reform 402.Google Scholar

88. United Nations Convention against Transnational Organized Crime (2000) Art 2, available at https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf (accessed 24 January 2013).

89. Boister, above 7, p 14.

90. Ibid, p 123.

91. Foreword to ‘United Nations Convention against Transnational Organized Crime and the Protocols Thereto’, available at https://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf (accessed 24 January 2013).

92. M Smith, D Krasnolutska and D Glovin ‘Organ gangs force poor to sell kidneys for desperate Israelis’ Bloomberg, 1 November 2011, available at http://www.bloomberg.com/news/2011-11-01/organ-gangs-force-poor-to-sell-kidneys-for-desperate-israelis.html (accessed 24 January 2013).

93. Ibid.

94. Ibid.

95. Ibid, at 126.

96. ‘Towards a Council of Europe Convention to combat trafficking in organs, tissues and cells of human origin’, above 5; ‘Committee of Experts on Trafficking in Human Organs, Tissues and Cells (Pc-to)’, available at http://www.coe.int/t/DGHL/STANDARDSETTING/CDPC/PC_TO_en.asp (accessed 23 January 2013).

97. Ibid.

98. Draft Council of Europe Convention against Trafficking in Human Organs, Art 1, available at http://assembly.coe.int/ASP/XRef/X2H-DW-XSL.asp?fileid=19236&lang=EN (accessed 23 January 2013).

99. Ambagtsheer et al, above 9.

100. The government of New South Wales has recently taken steps to deal with this discrepancy. See ‘Cash for kidneys as organ donors set to get wage from government’, available at http://www.news.com.au/breaking-news/organs-a-nice-earner-as-donors-to-get-wage/story-e6frfkp9-1226613961284#ixzz2WlKXsMVu (accessed 20 June 2013).

101. Ambagtsheer et al, above 9.

102. Draft Council of Europe Convention against Trafficking in Human Organs, above 98, Art 5.

103. Ibid, Art 7.

104. Ibid, Art 7(3).

105. See eg Sidley, P ‘South African doctors charged with involvement in organ trade’ (2004) 329 BMJ 190.Google Scholar

106. Draft Council of Europe Convention against Trafficking in Human Organs, above 98, Art 8.

107. Ibid, Art 9.

108. Ibid, Art 10(7).

109. Ibid, Art 11.

110. Ibid, Art 12.

111. Boister, above 7, p 136.

112. ‘Towards a Council of Europe Convention to combat trafficking in organs, tissues and cells of human origin’, above 5.

113. Ibid.

114. Article 13.

115. Article 17.

116. Boister, above 7, p 137.

117. ‘Towards a Council of Europe Convention to combat trafficking in organs, tissues and cells of human origin’, above 5, para 8.3.

118. Draft Council of Europe Convention against Trafficking in Human Organs, above 98, Art 18.

119. Ibid, Art 21.1.

120. Ibid, Art 21.2(3).

121. ‘Towards a Council of Europe Convention to combat trafficking in organs, tissues and cells of human origin’, above 5.

122. It should be noted that the UK is still not a signatory to the Council of Europe Convention on Human Rights and Biomedicine.

123. See Brahams, D ‘Kidneys for sale by living donors’ (1989) Lancet 285;Google Scholar ‘Kidneys for Sale’ (1989) New L J 159.

124. Human Tissue Act 2004, s 32.

125. Liddell, K and Hall, A ‘Beyond Bristol and Alder Hey: the future regulation of human tissue’ (2005) 13 Med L Rev 170; during the debates, the government minister Rosie Winterton stated that it was: ‘never our intention to interfere with commercial activities that had been lawfully and ethically carried on for many years. We therefore propose to amend the Bill to confine the offences connected with advertising and supply of human tissue for reward to transplantable tissue only’ (Hansard HC Deb, col 115, 28 June 2004).Google Scholar

126. Human Tissue Act 2004, s 32(8), (9).

127. Human Tissue Act 2004, s 32(9).

128. Criminal penalties: summary – max 1 year prison or fine; on indictment – max 3 years prison – or fine.

129. Respectively, Human Tissue Act 2004, s 3.2(6) and s 32(7).

130. R v Tuck, above 83.

131. See the two principal reports into organ retention: Bristol Inquiry Report Removal and Retention of Human Material, hereafter referred to as the Bristol Inquiry (Department of Health, 2000); The Royal Liverpool Children's Inquiry Report, hereafter referred to as the Redfern Report (London, The Stationery Office, 2001). For a discussion of the impact of the findings of these Inquiries, see Mason, Jk and Laurie, Gt ‘Consent or property: dealing with the body and its parts in the shadow of Bristol and Alder Hey’ (2001) 64 Mod L Rev 710.Google Scholar

132. ‘Warning over Uk's “organ tourists” ’, 15 August 2008, available at http://www.politics.co.uk/news/2008/08/15/warning-over-uk-s-organ-tourists (accessed 24 January 2013). In this article, Adrian McNeil, then Chief Executive of the Human Tissue Authority, commented that ‘It is not an offence for a person in the UK to seek medical treatment abroad, but patients seeking this route might find it difficult to assure themselves both of the quality and safety of the transplant and whether the donor has given fully informed consent.’ He went on to say that the international transplant community condemned such travel.

133. Y Shimazono The State of the International Organ Trade: a Provisional Picture Based on Integration of Available Information (2009), WHO, available at http://www.who.int/bulletin/volumes/85/12/06-039370/en/#R28#R28 (accessed 24 January 2013).

134. Lunt et al, above 12.

135. The Vienna Forum to Fight Human Trafficking, 13–15 February 2008, Austria Center, Vienna, Background Paper.

136. Devereaux and Lorings, above 75, at 20.

137. Parliamentary Assembly Recommendation 1611 (2003) on trafficking in organs in Europe, available at http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta03/EREC1611.htm (accessed 24 January 2013).

138. Tsai, Fu Chang ‘Transplant tourism from Taiwan to China: some reflection on professional ethics and regulation’ (2010) 10 Am J Bioethics 22.Google Scholar

139. We are ambivalent about this as an absolute rule, given the diversity of the situations that can lead someone to travel for a transplant.

140. ‘Liver Advisory Group alcohol guidelines: November 2005’, available at http://www.organdonation.nhs.uk/about_transplants/organ_allocation/pdf/liver_advisory_group_alcohol_guidelines-november_2005.pdf (accessed 24 January 2013).

141. Meyer, above 8, at 229.

142. See further Lowe, V International Law (Oxford: Clarendon Law Series, 2007) ch 5;CrossRefGoogle Scholar Shaw, M International Law (Cambridge: Cambridge University Press, 2008) ch 12.CrossRefGoogle Scholar

143. Boister, above 7, pp 142–147.

144. Harden [1963] 1 QB 8; Hurst, M Jurisdiction and the Ambit of the Criminal Law (Oxford: Oxford University Press, 2003).CrossRefGoogle Scholar

145. [1963] AC 48 at 67.

146. The offence of murder by a British subject and conspiracy to commit murder apply wherever they take place; see Offences Against the Person Act 1861, ss 9 and 4. Other offences include the Bribery Act 2010, s 7; and Sexual Offences Act 2003, s 72.

147. Health professionals have a monitoring role to identify those who may be at risk of female genital mutilation either in the UK or who risk being taken overseas for this procedure: see further Simpson, J et al ‘Female genital mutilation: the role of health professionals in prevention, assessment, and management’ (2012) 344 BMJ 37–41.Google Scholar

148. Harden (1963) 1 QB 8 and Treacy v DPP [1971] AC 537.

149. (1998) Court of Appeal 2 Cr Appl R 461.

150. Blackstone's Criminal Practice (Oxford: Oxford University Press, 2009) pp 155–156.

151. In Smith (Wallace Duncan) [1996] 2 Cr App R 1 and Smith (Wallace Duncan) (No 4) [2004] QB 418.

152. R v Harden [1963] 1 QB 8.

153. [2004] QB 418.

154. Ibid.

155. Blackstone's, above 150, para A 8.4.

156. R (Purdy) v DPP (2009) UKHL 45.

157. [2010] 1 WLR 2779.

158. For example, a Turkish law bans cross-border reproductive care where this involves gamete donation. Item 231 of the Turkish Penal Code provides that it is illegal to ‘change or obscure a child's ancestry’ and sets a penalty of 1–3 years' imprisonment. See Van Hoof, W and Pennings, G ‘Extraterritoriality for cross-border reproductive care: should states act against citizens travelling abroad for illegal infertility treatment’ (2011) 23 Reprod Biomed Online 546–554. Storrow suggests that this could be upheld because, first, it is an expression of the nationality principle and, second, it is unlikely to give rise to jurisdictional dispute between states:Google Scholar Storrow, Rf ‘Assisted reproduction on treacherous terrain the legal hazards of cross-border reproductive travel’ (2011) 23 Reprod Biomed Online 541. However, such extra-territorial jurisdiction could be the subject of a European Human Rights claim. In the case of SH v Austria, the Grand Chamber took into account, in finding that a prohibition on gamete donation was not a breach of the European Convention on Human Rights, that individuals affected by the domestic prohibition could travel, seeGoogle Scholar S.H. and Others v Austria, no. 57813/00 (Grand Chamber, 3 November 2011).

159. Van Hoof and Pennings, ibid.

160. Boister, above 7, p 14, notes that this is a key feature of transnational criminal law.

161. Parliamentary Assembly Recommendation 1611, above 137.

162. See the discussion of physician attitudes in Ambagtsheer et al, above 9, 11–13.

163. See eg X v Y [1988] 2 All ER 648; General Medical Council Confidentiality (London: GMC, 2009); NMC The Code: Standards of Conduct, Performance and Ethics for Nurses and Midwives (London: NMC, 2008).

164. Campbell v Mirror Group Newspapers [2004] 2 All ER 99.

165. W v Egdell [1990] 1 All ER 835; McHale, JV ‘Confidentiality: an absolute obligation?’ (1989) 52 Mod L Rev 715 Google Scholar; Mason, JK ‘The legal aspects and the implications of risk assessment’ (2000) 7 Med L Rev 69 Google Scholar; Confidentiality: NHS Code of Practice. Supplementary Guidance: Public Interest Disclosures (National Health Service, 2010), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/152224/dh_122031.pdf.pdf (accessed 20 June 2013).

166. Terrorism Act 2000, s 19; also see s 172 of the Road Traffic Act 1988, s 172, where on request a doctor must provide any evidence which may lead to the identification of a car driver involved in an accident.

167. Parliamentary Assembly Recommendation 1611, above 137.

168. Shoham, S et al ‘Invasive filamentous fungal infections associated with renal transplant tourism’ (2010) 123 Transpl Infect Dis 71.Google Scholar

169. See http://www.who.int/bulletin/volumes/85/12/06-039370/en/#R33#R33 (accessed 24 January 2013).

170. ‘Press release: Mhra warns public of potentially dangerous sports supplements’, available at http://www.mhra.gov.uk/NewsCentre/Pressreleases/CON174842 (accessed 29 January 2013).

171. GMC Good Medical Practice: Decisions about Access to Medical Care (London: General Medical Council, 2007).

172. Roberts and Scheper-Hughes, above 1.

173. Gostin, Lo and Taylor, A ‘Global health law: a definition and grand challenges’ (2008) 1 Pub Health Ethics 61.Google Scholar