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Law Notes Medical Law Notes

Organs As Property Notes

Updated Organs As Property Notes

Medical Law Notes

Medical Law

Approximately 1067 pages

Medical Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB medical law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best Medical Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through forty-eight LLB samples from outstanding law students with the highest...

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Selling Organs

The Criminal Offences

  • Commercialising body parts (s.32 HTA 2004)

    • (1) A person commits and offence if

      • (a) he gives or receives a reward for the supply of, or for an offer to supply, and controlled material

      • (b) seeks to find a person willing to supply any controlled material for reward

      • (c)offers to supply any controlled material for reward

      • (d) initiates or negotiates any arrangement involving the giving of a reward for the supply of, or an offer to supply, any controlled material

      • (e) takes part in the management of an unincorporated or corporate body whose activities include the initiation or negotiation of such arrangements.

    • (2) [In addition] a person commits and offence if he causes to be published or distributed, or knowingly publishes or distributes an advertisement

      • (a)inviting persons to supply, or offering to supply, any controlled material for reward

      • (b) indicating that the advertiser is willing to negotiate any such arrangement as mentioned in (1)(d)

  • However it’s not as strict as first appears

    • Can include expenses

      • (7)References ... to reward ...do not include payment in money or money’s worth for defraying or reimbursing—

        • (a)any expenses incurred in, or in connection with, transporting, removing, preparing, preserving or storing the material.

        • (b)any liability incurred in respect of—

          • (i)expenses incurred by a third party in, or in connection with, any of the activities mentioned in paragraph (a), or

          • (ii)a payment in relation [to per (6) they have licence] has effect, or

          • (c)any expenses or loss of earnings incurred by the person from whose body the material comes

            • so far as reasonably and directly attributable to his supplying the material from his body

    • Offences are only committed where

      • The controlled material consists of or includes human cells and is intended for use in transplantation

      • So it doesn’t include gametes, embryos, or “materials which is the subject of property b/c of an application of human skill”

        • Herring: there is a problem here, as this phrase is very vague, and arguably the preserving of an organ removed from a person for transplantation is “the subject of property”

          • If so, then the very purpose of the section – to stop commercialisation of transplant parts – is undermined.

    • S.32(3)

      • Permits the Human Tissue Authority to grant a licence to designated bodies to trade in human material

        • E.g. the National Blood Service can purchase blood from abroad if necessary.

The Ethical Dimension

Arguments against permitting organ selling

  • Gains for the rich?

    • The fear

      • If a market is created for organs, then we create a market. Markets tend to be bad things for the poor, as valuable commodities become very expensive as demand increases

        • Therefore the rich would get the organs while the poor might be the ones supplying them

          • At the very least they would have to go without, instead of organs being distributed on the basis of needs

    • Counter arguments

      • Harris: No need to go this far – why not just let the NHS purchase and then distribute as it wishes?

        • Thus providing an incentive to give organs and increase supply, while ensuring that needs are still paramount.

      • Herring: Already have private medicine which allows rich to skip the queue and buy better quality treatments – why not organs?

    • Counter-Counter Arguments

      • Wall: Private healthcare is a service which can be bought into and involve no permanent harm to their provider

        • Organs are assets which cause harm in their extraction

        • There is therefore something of a difference between the two.

  • Vendors are coerced or do not validly consent to the sale of their organs

    • The fear

      • People who sell their organs are often driven to do so by poverty and fear of debt collectors

        • Any person wanting to sell their kidney tends to do so in desperation.

    • Counter Arguments

      • If the market is lawful it can be properly regulated, so that only those who properly consent can actually give their organs

      • Also, if people are driven to sell organs owing to poverty, is this coercion?

        • Wikinson: People often agree to do things for money – e.g. 65% people said would have sex with a complete stranger for 1m

        • Those people wouldn’t be thought of as entering into an arrangement against their will

          • Perhaps we should focus on them legitimacy of the pressure than all the pressure of life

  • Exploitation

    • The fear

      • George: Selling organs is akin to slavery

        • Is this the sort of society we want – where the poor sell their organs and the rich buy them?

        • The evolution of human civilization has witness several periods of gross exploitation of human brings – slavery, extermination of Jews

          • Selling organs for value is another expression of values which see some human beings more valuable than others

      • Herring: seems a little far-fetched to say that organ selling is akin to Nazi extermination

  • Bodily invasion

    • To remove an organ is an invasion of bodily integrity

      • Although this can be justified by the good of altruism, it can’t be justified by commercial sale and profit – it’s not a countervailing good.

    • Mason and Laruie: We’re not normally concerned with people’s motivations for selling things

      • ME: we criminalise those who deal in cannabis even when it is said to have medicinal effect for some people

        • Also, could argue that person is selling kidney in order to help his starving family would be an altruistic act

  • Commercialisation of the body

    • Bjorkmann: Allowing body parts to be sold confers on them the same status as other chattels like cars and televisions

      • i.e. disposable and transient

      • this leads to a devaluation of the body and human life, with the body some property to be disposed of at will.

    • Dickinson:

      • The body both is, and is not, the person.

      • But it should never be only a consumer good, a capital investment, a transferrable resource, merely a thing

        • Our consciousness, dignity, energy and human essence are all embodied, caught up in our frail bodies

        • ...

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