Organ Tourism and Cadavers on Display Bill [HL]

Sally Dray

The Organ Tourism and Cadavers on Display Bill is a private member’s bill sponsored by Lord Hunt of Kings Heath (Labour). The bill was introduced in the House of Lords on 25 May 2021. Its second reading is scheduled to take place on 16 July 2021.

Lord Hunt introduced the same bill in the last session, but it did not progress past first reading. Explanatory notes were published for the bill in the 2019–21 session.

Why has the bill been introduced?

The sponsor of the bill, Lord Hunt of Kings Heath, has outlined his reasons for introducing it:

The purpose of this bill is to protect UK citizens from complicity in forced organ harvesting by amending the Human Tissue Act 2004 in two ways.

First, by ensuring UK citizens cannot travel to countries, like China, for organ transplantation. […] It therefore also seeks to stop UK citizens from partaking in organ tourism to countries where organs may be obtained through black market organ trafficking.

Secondly, to put a stop to real human body exhibitions being put on display in the UK when the cadavers do not have proof of identity or consent, such as those sourced from China.

This bill will not affect cadavers on display that have been deceased for over 100 years, or those who have given appropriate consent and identity is documented. Nor will it affect UK citizens travelling abroad for organ transplantation when appropriate consent has been given and no financial gain nor coercion takes place.

What would the bill do?

The bill would amend the Human Tissue Act 2004 (the 2004 act) to ensure that appropriate consent had been given by organ donors for transplantation activities carried out abroad and for the public display of imported cadavers.

Clause 1 of the bill would amend section 32 of the 2004 act. It would prohibit someone with “a close connection to the UK”, such as a UK citizen or resident, from travelling outside the UK to receive controlled material for the purpose of organ transplantation if the material was obtained without:

the free, informed and specific consent of a living donor; or
the free, informed and specific consent of the donor’s next of kin.

It would also prohibit a UK citizen from travelling outside the UK to receive a controlled material that was removed from the donor (whether living or deceased) in exchange for financial gain or comparable advantage.

A controlled material, as set out in the Human Tissue Act 2004, includes any material which consists of or includes human cells, and is, or is intended to be, removed from a human body to be used for the purpose of transplantation. There are a few excepted materials, including gametes and embryos.

The penalty for such an offence would be a term of imprisonment and/or a fine. The term of imprisonment would not exceed 12 months, in the case of summary conviction, or nine years, in the case of conviction on indictment. The fine would not exceed the statutory maximum. The bill provides that proceedings for offences may be taken in any criminal court in England and Wales or Northern Ireland.

Clause 1 would also amend section 34 of the 2004 act so that regulations made under the section would require specified persons to keep and report cases in which a UK citizen had received a transplant procedure abroad. NHS Blood and Transplant would be required to publish an annual report on these instances.

Clause 2 would amend section 1 of the Human Tissue Act 2004. It would provide for the same consent requirements to be applied to imported cadavers for display as are applied to cadavers for display sourced from the UK.

Clause 3 sets out that the act, if passed, would apply to England and Wales only. It would come into force on the day that it was passed. The explanatory notes to the 2019–21 bill set out that human tissue policy is within the devolved competence of the Welsh Assembly, so a legislative consent motion would be required.

Organ tourism

What is organ tourism?

An article published in a World Health Organisation bulletin published in 2007 evaluated the state of the international organ trade at that time. It said that the international organ trade remained obscure because of “scarce data and the lack of efforts to synthesize available data”. It set out what it defined as ‘organ tourism’ or ‘transplant tourism’:

The most common way to trade organs across national borders is via potential recipients who travel abroad to undergo organ transplantation, commonly referred to as “transplant tourism”. Although this term may be contentious as it disregards the patients’ desperate motives and fails to reflect ethical issues.

“Transplant tourism” involves not only the purchase and sales of organs, but also other elements relating to the commercialisation of organ transplantation. The international movement of potential recipients is often arranged or facilitated by intermediaries and health-care providers who arrange the travel and recruit donors. The internet has often been used to attract foreign patients.

There have been some efforts internationally to combat this practice. For example, on 25 March 2015, the Council of Europe opened its convention against trafficking in human organs for signature by appropriate parties. The convention called on governments to establish as a criminal offence the illegal removal of human organs from living or deceased donors where there has been no consent from the donor, or where either the donor or a third party receives financial incentive or comparable advantage from the organ removal. The convention came into force on 1 March 2018.

In addition, the Declaration of Istanbul on Organ Trafficking and Transplant Tourism was agreed by global representatives at a summit in Turkey in 2008. The declaration included a principle that:

Organ trafficking and transplant tourism violate the principles of equity, justice, and respect for human dignity and should be prohibited. Because transplant commercialism targets impoverished and otherwise vulnerable donors, it leads inexorably to inequity and injustice and should be prohibited.

Several countries around the world have passed legislation to ban organ trafficking, including Italy, Spain, Israel and Taiwan.

What is the scale of the global organ trade?

A 2017 report by Global Financial Integrity, a US-based think tank, has conservatively estimated that organ trafficking generates approximately $840 million to $1.7 billion annually. Its findings were based on estimated prices paid to vendors around the world, sourced from local reporting or academic articles in each country referenced.

In the same report, it also estimated globally that there was a total of 12,000 illegal transplants, as up to 10% of all transplants are thought to rely on organs that have been illicitly acquired. This was comprised of an average 7,995 illegal kidney transplants, 2,615 illegal liver transplants and 654 illegal heart transplants.

The United Nations Office on Drugs and Crime (UNODC) reports annually on global trafficking in persons. In its most recent report, the UNODC said that trafficking for the purpose of organ removal was detected in North Africa, South and South-East Asia, Central America and Europe. In 2017, about 25 victims were reported. In 2018, more than 40 victims were reported. The UNODC also said that men were the most likely victims of this kind of trafficking.

China

Several bodies have alleged that the practice of forced organ harvesting is taking place in China, including campaign groups, politicians and medical groups such as the British Medical Association. In 2006, China said that it was using executed prisoners’ organs for transplants, after previously denying it did so. It said that it would stop the practice by 1 January 2015.

China Tribunal

In October 2018, the International Coalition to End Transplant Abuse in China (ETAC) established an independent people’s tribunal to investigate claims of forced organ harvesting in China. The tribunal was expected to provide analysis of the issue as well as “a transparent and permanent evidence-based record of forced organ harvesting in China” to influence international organisations to take action. The China Tribunal was made up of seven independent members and chaired by barrister Sir Geoffrey Nice, who acted as a lead prosecutor against the former president of Serbia, Slobodan Milošević,

The tribunal held evidence hearings in London in December 2018 and April 2019. It took evidence from witnesses including refugees, medical professionals and investigators. It published an interim judgment in December 2018, in which it stated:

The tribunal’s members are certain—unanimously, and sure beyond reasonable doubt—that in China forced organ harvesting from prisoners of conscience has been practiced for a substantial period of time involving a very substantial number of victims.

In March 2020, the tribunal published its full judgment. It set out the tribunal’s conclusions on criminality and recommended that the United Nations consider this matter.

On 14 June 2021, human rights experts at the UN said they were “extremely alarmed” by reports of organ harvesting in China, but did not specifically mention the tribunal. They called on China to respond to the allegations and to allow independent monitoring by international human rights mechanisms.

In an article for Reuters, a spokesman for the Chinese Embassy in London said that government regulations stipulated that human organ donation must be voluntary and without payment.

What has the UK Government said on the issue?

The Government has said that the clinical advice to patients in the UK is not to travel to less well-regulated countries to seek an organ transplant. It said that “it is thought that very few patients in the UK choose to do so but data on those who do is not available”.

During report stage of the Medicines and Medical Devices Bill on 12 January 2021, Government Whip, Baroness Penn, responded to the allegations of organ harvesting in China. She said:

The Government’s position is clear: if true, the practice of systemic, state-sponsored organ harvesting would constitute a serious violation of human rights. The China Tribunal report has been carefully considered by the FCDO and adds to a growing body of evidence about the disturbing situation that Falun Gong practitioners, Uighurs and other minorities face in China.

She went on to say that there had been a “valuable meeting” between officials from the UK and the World Health Organisation to discuss the issue. In addition, the Minister for South Asia and the Commonwealth, Lord Ahmad, had committed to meeting Sir Geoffrey Nice in the coming months to discuss the tribunal’s report.

The UK signed the Council of Europe Convention on Organ Trafficking on 25 March 2015. It has not ratified the convention and has said it will not apply its jurisdiction rules. It also said it supports the 2008 Declaration of Istanbul on Organ Trafficking and Transplant Tourism.

Cadavers on display

What legislation is currently in place for cadavers on display?

In England, Wales and Northern Ireland, a licence from the Human Tissue Authority is required to publicly display a body or relevant material from a deceased person. The Human Tissue Act 2004 states that:

[…] appropriate consent must be in place for the storage and use of the body of a deceased person, or relevant material from the body, for public display. Consent must be given in writing whilst the person is alive, for their body, body parts and tissue to be stored and displayed after their death. For consent to be valid it must be given voluntarily and by a person who has the ability to make an informed decision. The person giving consent must also have the best information given to them so that they can make their decision.

However, these consent requirements do not apply to imported material. The Human Tissue Authority states that it is “good practice” for any establishment importing such material to apply them.

Exhibitions

The ‘Body Worlds’ exhibition, first shown in Japan in 1995, was the first exhibition to show real human bodies that had been preserved through a process called plastination. The plastination process first removes water and fat from a corpse. It is then filled with plastic and moulded into place before being left to harden. The whole process can take about a year to complete. The ‘Body Worlds’ exhibition has since been shown across the US and Europe. It has influenced a number of similar exhibitions.

For example, in New York in 2008, exhibition organisers were forced to display a sign at the entrance of its exhibition displaying human cadavers outlining that they could not confirm that the bodies on display were not Chinese prisoners of conscience.

‘Real Bodies’ exhibition

In June and August 2018, the ‘Real Bodies’ exhibition was shown in Birmingham. It showed 20 real human bodies and 200 anatomical specimens that had been “posthumously dissected and preserved using the process of plastination”.

Concerns were raised that the bodies on display could have been those of political prisoners from China. An open letter from the International Coalition to End Transplant Abuse in China, signed by a selection of MPs, peers, academics and doctors, argued that the exhibition should be “shut down immediately and thoroughly investigated”. The letter said the bodies were known to have been sourced from China but there were no consent documents and identification papers to confirm the origins of the deceased. Additionally, there was no documentation to prove that the deceased had agreed to donate their bodies.

The same exhibition was shown in Australia in April 2018. A group comprised of doctors, lawyers and scientists raised similar concerns that the bodies could have been sourced from executed Chinese prisoners.

During report stage of the Medicines and Medical Devices Bill on 12 January 2021, Baroness Penn said the Government would “take forward work to strengthen the Human Tissue Authority’s code of practice on public display for imported tissues”. She went on to say that:

By strengthening key safeguards, we can ensure that robust assurances on consent are fully received, considered, assessed and recorded, before any display licences are issued to importers or exhibitors. […] This work is under way, and I am confident that, as a result, we can ensure that no exhibitors can display imported bodies without robust evidence of consent.