24 November 2009

Transplantology is illegal

I will sell a kidney to a rich client
The absence of an exact rule of law regulating organ transplantation creates prerequisites for the development of illegal trade
Marat Abdullayev, Parliamentary Newspaper from 20.11.2009

It would seem that there is nothing special about the fact that there are non-working articles in criminal legislation. The dream of the mind, as you know, gives birth to monsters, if you keep in mind that everything happens in life – even things that you refuse to believe in. And the law is probably obliged to provide for everything. Even if it is unrealistic today in terms of what a person is capable of.

 The committees did not agreeAmong the mentioned "non–working" articles in our criminal legislation is article 120 - "Coercion to the removal of human organs or tissues for transplantation."

Since 1996, that is, since its introduction into force, despite the fact that dozens of cases have "passed" under it, none of them ended with a guilty verdict according to the wording of the specified norm.

Nevertheless, the State Duma has received a bill proposing to amend the non-working article concerning the strengthening of criminal liability for forcing the removal of human organs or tissues for transplantation.

The State Duma Committee on Civil, Criminal, Arbitration and Procedural Legislation, through which this bill originally passed, supported the initiative of the authors, agreeing that Article 120 of the Criminal Code contains inadequately low sanctions. At the same time, the committee draws attention to the public danger and prevalence of these crimes in the world, which has already been reflected in international legal documents, including in terms of tougher penalties.

The UN and the Council of Europe are sounding the alarm. "The growing trade in human organs and tissues is flourishing," the UN Secretary–General's report on this topic said. "The lack of proper legislation regulating organ transplantation creates significant prerequisites for the development of illegal trade."

The Council of Europe, in the Convention for the Protection of Human Rights and Human Dignity, has provided for criminal penalties for obtaining financial benefits from the sale of a human body and its parts.

Actually, the overwhelming majority of countries treat this issue quite harshly. Direct involvement in the illegal trafficking of organs, their transplantation and all previous acts related to crimes against the person in this aspect can result in a twenty-year prison term and hard labor. Moreover, nothing good awaits not only brokers, but also intermediaries, as well as medics involved in illegal transplantation.

From this point of view, the amendments to our criminal legislation, toughening the responsibility for forcing transplantation, look quite logical. But here's what's interesting: in general, agreeing with the direction of the bill, another State Duma Committee on Health Protection proposed to reject the document in this version. Why?

Two answers to one "why"There can be two answers to this "why".

The first of them is contained in the official opinion of the committee. And although the "criminal subject matter" is not a "direct profile" of this division of the State Duma, the legal logic of the wording of the refusal is impeccable.

We read the conclusion of the committee: "The actions of a person aimed at forcing the removal of human organs or tissues for transplantation, in most cases, entail criminal liability not under Article 120 of the Criminal Code of the Russian Federation, but under articles 30 (preparation or attempt), 105 (murder), 111 (causing serious harm to health) of the Criminal Code of the Russian Federation, where it is provided a much more serious punishment."

And indeed, murder for the purpose of using the victim's organs or tissues (under Article 105 of the Criminal Code) is punishable by a term of eight years in prison to death. For intentional infliction of serious harm to health committed for the purpose of using the organs or tissues of the victim, you can get from three to ten years in prison (Article 111 of the Criminal Code). Trafficking in persons for the purpose of removing organs from them (Article 127 of the Criminal Code) provides for three to ten years of imprisonment. The ceiling of the punishment under article 120 is proposed to be set to 8 years of imprisonment.

However, if we "include" not only legal, but also ordinary logic, it will probably become clear that the State Duma Committee on Health Protection, in its argumentation of rejection of the bill, goes, to put it mildly, in a different field. The 120th article of the Criminal Code, if you look at its essence, is not at all related to actions, the direct result of which can lead to the death of a person or bodily injury as a result of illegal organ transplantation. It provides for responsibility for the very fact of coercion (even forcible) to transplantation.

Is it possible to say that responsibility for something like this is already spelled out in our legislation? And yes, and no, if you arm yourself with the mentioned Article 30 of the Criminal Code "Preparation for a crime and attempted crime". "Yes," because such responsibility is spelled out in this article. And "no", because the punishment under this article comes only in the case of an attempt on a serious or especially serious crime.

Meanwhile, the maximum penalty under the current 120th article (up to 5 years of imprisonment) automatically, according to Article 15 of the Criminal Code, refers coercion to organ transplantation to the category of crimes of moderate severity. That is, if you refuse the "maximum" punishment proposed by the deputies in the form of 8 years, responsibility under Article 30 of the Criminal Code may not come at all.

Here we have probably come to the second and, most likely, the supposed "why". Why did the State Duma Committee on Health Protection consider the bill to strengthen responsibility for forcing transplantation premature?

Chimeras of transplantationNot so long ago, during our conversation with the head of the Federal Scientific Center for Transplantology and Artificial Organs, corresponding member of the Russian Academy of Medical Sciences Sergey Gauthier, I could not help but ask him: honestly, hand on heart, can he assume that there is criminal transplantation in our country.

The point of view of the scientist and the practitioner on this issue seemed convincing to me not only because everything in this case is not as simple as it seems to non-specialists, but also because by that time I had "combed through" the most well-known facts of the world criminal transplantology.

What was easy to do, since this branch of medicine appeared relatively recently and there are relatively few criminal facts (in the world). And even then, this crime is almost unrelated to the fictional horrors of selling people "for spare parts", which other detectives are full of.

The first arrest on this "topic" occurred in 1996: poor people allegedly sold their kidneys to an Egyptian, which he then transferred to transplantologists. The case has stalled and got so lost that it is now even unclear whether it really took place.

At the beginning of the two thousandth years, a surgical department for secret kidney transplantation was discovered in one of the Roman clinics: again, the poor, through the mediation of doctors, offered themselves as donors for wealthy clients. A similar story happened in Istanbul in two private clinics – illegal kidney transplantation from donors who specially came to Turkey for this.

But, in general, there is not much with the facts, especially when you are trying to find out how this or that "doctors' case" ended, and it suddenly disappeared somewhere, as if there is no increased interest in this problem in society. On the other hand, of course, a person can be a potential donor – theoretically. With the significant caveat that the sum of the medical, biological and physiological indicators of the donor, which is strictly individual for each, coincides with the sum of the indicators of the organ in need of transplantation.

In legal transplantology, this selection is carried out by a computer – based on a database of patients on the waiting list. In the illegal (five theoretically) for a successful organ transplant, you can try to look for a needle in a haystack. But even in this case, a chilling picture depicting how a transplantologist takes human kidneys or hearts from the refrigerator, brought by "procureers", and tries them on to the patient is absolutely impossible.

The fact is that the selection is possible only after a comprehensive study of the donor himself, a subsequent, highly qualified operation, which is carried out by a team of specialists in special conditions with special equipment and fast delivery of the organ to the needy, to whom the "needle in a haystack" is a priori suitable. After all, the removed kidney "lives" no more than 48 hours, the heart and other organs – several times less.

So the skepticism of transplantologists about criminal organ transplants, not to mention their "harvesting", is great and justified not only from the point of view of the absence of iron facts on this score, but also from the point of view of the successful technical execution of the transplantation itself. Any rich patient has a more reliable way to replace a diseased organ with a healthy one – buying a place in the queue on a legal waiting list. But this, so to speak, is another criminal story.

Meanwhile, the "transplant" scandals that happened here – the acquittal in the case of Moscow doctors five years ago and the real punishment of the Ryazan pensioner Nina Tkacheva, who tried to sell her grandson "for organs" – caused a "side", but tangible effect. Domestic transplantology has been thrown back a decade, and society is still suspicious of this branch of medicine. Even legislators have not yet eliminated the contradictions in two federal laws that hinder the settlement of issues of posthumous donation, which can really save those who need organ transplants.

Perhaps that is why the State Duma Committee on Health Protection decided not to "disturb" the Criminal Code with new amendments, and at the same time not to torment the already cornered Russian transplantology. But this is only, I emphasize, an assumption. At the same time, it does not reject the need to introduce preventive measures for those who, out of ignorance, stupidity, naivety or out of self-interest, see in each of us a potential carrier of organs on which you can make money. That is why the laws of other countries still contain serious and unambiguous warnings on this score.

Portal "Eternal youth" http://vechnayamolodost.ru24.11.2009

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