I. Organ and Tissue Transplant: The Rights to Health and Life

International conventions have preserved the right to health as a basic human right, stressing the state’s obligation to respect and fulfill this right. The right to health is not limited to the provision of preventive and curative health services, but is rather a commitment on the part of states to the right of every person to enjoy the highest attainable standard of physical and mental health.³

Accordingly, General Comment No. 14 on the right to health⁴  issued by the UN Committee on Economic, Social and Cultural Rights states that “the realization of the right to health may be pursued through numerous, complementary approaches, such as the formulation of health policies, or the implementation of health programs developed by the World Health Organization (WHO), or the adoption of specific legal instruments.”⁵ 

The right to health is comprised of the following elements: ⁶ the availability of adequate health services and programs, provided by the state; the accessibility to health services without discrimination, which compels the state to ensure that all segments of society can bear the costs of treatment and services; and finally the health services must be of good quality that is acceptable by the citizens. These elements illustrate the importance of formulating legislation that allows the donation of organs to the needy as one means of guaranteeing their right to health. Such legislation would also enable the poor to obtain organs when they need them without discrimination, thus giving them a better chance to recover if they do require an organ transplant.

Applying the standards set forth by Article 12 of the Convention on Economic, Social and Cultural Rights to the obligations of signatory states allows for the identification of violations of the right to health. Violations can occur “through the omission or failure of States to take necessary measures arising from legal obligations”⁷  or when states do not guarantee equal access to health services. The right to health can also be violated through the direct action of states (i.e., the failure to issue a law regulating organ transplant and prohibiting the trade in organs) or the actions of third parties that are not regulated by the state (i.e., the organ-trafficking mafia). In the latter example, the state is failing to protect the poorest and most vulnerable members of society, who are the main victims of the organ trade. They are easy targets of exploitation because of their material needs and their ignorance of the dangers of transplant operations. Measures, such as passing legislation, are needed to protect those persons whose right to health is being violated by a third party.

The right to life is a non-derrogable right that the state cannot suspend even in times of war or national emergency; it cannot be abstained by taking measures that may arbitrarily deprive a person of life. Protecting the right to life also entails much more than this, as indicated by General Comment No. 6 on the right to life issued by the UN Human Rights Committee: “Moreover, the Committee has noted that the right to life has been narrowly interpreted too often. The expression ‘inherent right to life’ cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures…to increase life expectancy…”⁸  Viewed from this perspective, it is necessary to pass an organ transplant law to give citizens the opportunity to live longer and healthier. It is also important to minimize the risks the most vulnerable face as a result of exploitation by organ traffickers.

The report by the UN Special Rapporteur on the sale of children, child prostitution and child pornography, submitted to the Human Rights Council in March 2006, addressed the issue of the sale of children’s organs, since children are amongst the most vulnerable to exploitation. The Rapporteur noted that states that have signed the optional protocol of the Convention on the Rights of the Child on the sale and exploitation of children, as well as the protocol to prohibit human trafficking (which is a protocol to the Convention Against Transnational Organized Crime) are obligated to criminalize organ trafficking.⁹  Egypt is a party to both protocols.  The Special Rapporteur recommended that states pass legislations regulating organ transplant and donation thus criminalizing and punishing those who traffic in organs, in accordance with the guidelines developed by the WHO. The aim of the legislation is to prohibit “‘transplant tourism,’ in which the medical establishments openly take advantage of the disparities between the situation of the donor and the receiver, with significant risks for both persons involved in the transplant.”¹⁰ 

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3- Article 12 of the International Convention on Economic, Social and Cultural Rights, 1966. Several other international and regional conventions have also uphold the right to health, including the Universal Declaration of Human Rights (1948), Article 25; the Convention on the Elimination of All Forms of Discrimination Against Women (1979), Articles 11 and 12; Convention on the Rights of the Child (1989), Article 24; and the African Charter on Human and Peoples’ Rights (1981), Article 16.

4-The General Comments are documents issued by the UN treaty monitoring bodies, including the Committee on Economic, Social and Cultural Rights to clarify the articles of the treaties they are monitoring, particularly the commitments and principles incumbent on signatory nations to these treaties.

5- General Comment No. 14 (2000), UN Committee on Economic, Social and Cultural Rights, paragraph 1.
 

6- Ibid.
 

7- Ibid., paragraph 49.
 

8- UN Human Rights Committee, General Comment No. 6 (1982), paragraph 5.
 

9- Report from the Special Rapporteur on the sale of children, child prostitution and child pornography, presented to the Human Rights Council, no. A/HRC/4/31, issued on 26 Dec. 2006..
 

10- Report of the Special Rapporteur, 2006, paragraph 80.