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Organs As Property Notes

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Selling Organs The Criminal Offences

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Commercialising body parts (s.32 HTA 2004) o (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. o (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)

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However it's not as strict as first appears o Can include expenses
? (7)References ... to reward ...do not include payment in money or money's worth for defraying or reimbursing---

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

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(b)any liability incurred in respect of---
o (i)expenses incurred by a third party in, or in connection with, any of the activities mentioned in paragraph (a), or o (ii)a payment in relation [to per (6) they have licence] has effect, or o (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 o 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"

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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" o If so, then the very purpose of the section - to stop commercialisation of transplant parts - is undermined. o S.32(3)
? Permits the Human Tissue Authority to grant a licence to designated bodies to trade in human material

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E.g. the National Blood Service can purchase blood from abroad if necessary. The Ethical Dimension Arguments against permitting organ selling

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Gains for the rich?
o 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

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Therefore the rich would get the organs while the poor might be the ones supplying them o At the very least they would have to go without, instead of organs being distributed on the basis of needs o Counter arguments
? Harris: No need to go this far - why not just let the NHS purchase and then distribute as it wishes?

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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?
o Counter-Counter Arguments
? Wall: Private healthcare is a service which can be bought into and involve no permanent harm to their provider

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Organs are assets which cause harm in their extraction

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There is therefore something of a difference between the two.

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Vendors are coerced or do not validly consent to the sale of their organs o The fear
? People who sell their organs are often driven to do so by poverty and fear of debt collectors

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

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Wikinson: People often agree to do things for money - e.g. 65% people said would have sex with a complete stranger for PS1m

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Those people wouldn't be thought of as entering into an arrangement against their will o Perhaps we should focus on them legitimacy of the pressure than all the pressure of life

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Exploitation o The fear
? George: Selling organs is akin to slavery

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

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