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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

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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

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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

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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

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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.

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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

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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.

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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

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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

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

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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

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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

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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

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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).

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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.

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

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