April 2006 - Payment for Human Organs and Tissues

Of the many proposals for dealing with the worldwide shortage of transplantable organs and tissues, the so-called 'market solution' has attracted increasing attention in recent years. Some of its supporters favour the use of the free market for all transactions and see no reason why organs and tissues should be exempt. They are critical of governments that forbid the sale of a kidney while allowing compensation for blood, ova and sperm.

Other market supporters cite the existence of a thriving illegal traffic in organs and consider that since such buying and selling probably cannot be eliminated, they should at least be regulated.

China has long been accused of selling the organs of executed prisoners to foreign transplant recipients, and in December 2005, Chinese Deputy Health Minister Huang Jiefu admitted that this practice is common but promised to change it. In March 2006 the health ministry released new guidelines, effective July 1, that will forbid the buying and selling of organs. Removal of organs will require the written permission of the donor and only a few top medical institutions will be authorised to carry out transplants.

The medical profession has traditionally opposed the commodification of human body parts. The WMA Statement on Human Organ & Tissue Donation and Transplantation (currently under revision) states: "Payment for organs and tissues for donation and transplantation should be prohibited. A financial incentive compromises the voluntariness of the choice and the altruistic basis for organ and tissue donation. Furthermore, access to needed medical treatment based on ability to pay is inconsistent with the principles of justice. Organs suspected to have been obtained through commercial transaction should not be accepted for transplantation. In addition, the advertisement of organs should be prohibited. However, reasonable reimbursement of expenses such as those incurred in procurement, transport, processing, preservation, and implantation is permissible."

The principal international association of transplant specialists, The Transplantation Society, has consistently opposed paid organ 'donation' over the past two decades: "organs and tissues should be freely given without commercial consideration or financial profit.…"

The World Health Organization also opposes the sale of organs and tissues. In 1991 the World Health Assembly adopted a set of Guiding Principles on Human Organ Transplantation that states, "The human body and its parts cannot be the subject of commercial transactions. Accordingly, giving or receiving payment (including any other compensation or reward) for organs should be prohibited." In May 2004 the World Health Assembly adopted a resolution that urges member states "to take measures to protect the poorest and vulnerable groups from "transplant tourism" and the sale of tissues and organs, including attention to the wider problem of international trafficking in human tissues and organs."

Finally, many individual governments have banned commercial transactions in human body parts, whether for transplantation or for any other purpose. Likewise, the Council of Europe, in its Additional Protocol to the Convention on Human Rights and Biomedicine, on Transplantation of Organs and Tissues of Human Origin, prohibits financial gain from the human body and its parts, including organ and tissue trafficking.

One medical association that has provided cautious support for a pilot program of financial incentives for 'futures contracts' regarding organ 'donations' is the American Medical Association. In its policy on Ethical Aspects of Future Contracts for Cadaveric Donors, it proposes that an adult be allowed to agree while still competent to donate his or her organs after death. In return, the appropriate state agency would agree to give some financial remuneration to the donor's family or estate after the organs have been retrieved and judged medically suitable for transplantation. The AMA program includes a series of safeguards to prevent abuse of the system.

March 2006 - The Right to Health

The Constitution of the World Health Organization states that the "enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…." International statements on human rights, such as the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, support the right to health and require signatory nations to secure its observance.

Despite the widespread, although by no means universal, acceptance of the right to health, both its meaning and its application are problematic. It cannot mean a right to be healthy, since much illness is impossible to prevent or cure. Nor can it mean that individuals have a right to all needed health care services, since the demand for such services is greater than the supply in even the wealthiest countries. There seems to be general agreement that the right to health entails a minimum requirement that individuals should be protected from actions that undermine their health. There is much disagreement as to whether individuals have a further right to equal access to needed health care in their country or elsewhere. Some countries accept and promote this right while in others, access to health care is largely dependent on one's financial resources.

Even where the right to health is accepted, it is often difficult to implement because of a severe shortage of resources. This is clearly the situation in many developing countries, although some of these countries (e.g., Sri Lanka) have managed to promote equitable access to their limited health care resources, with extremely positive results for the overall health status of the population.

In 2000 the Committee on Economic, Social and Cultural Rights, which was created to monitor the International Covenant on Economic, Social and Cultural Rights, issued a report on the right to health. It interpreted this right "as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health. A further important aspect is the participation of the population in all health-related decision-making at the community, national and international levels." According to the Committee, States have the following obligations in relation to the right to health: "The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil contains obligations to facilitate, provide and promote…. The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect requires States to take measures that prevent third parties from interfering with article 12 guarantees. Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health."

Also in 2000 the United Nations General Assembly adopted the United Nations Millennium Declaration that includes eight Millennium Development Goals to be achieved by 2015. Five of these relate to the right to health: halve extreme poverty and hunger, reduce under-five mortality by two-thirds, reduce maternal mortality by three-quarters, reverse the spread of diseases, especially HIV/AIDS and malaria, and ensure environmental sustainability.

In 2002 the United Nations Commission on Human Rights appointed, for a period of three years, a Special Rapporteur whose mandate focuses on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The mandate was extended in 2005 for three years, and the Special Rapporteur was asked, among other things, "To gather, request, receive and exchange information from all relevant sources, including Governments, intergovernmental organizations and non-governmental organizations, on the realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health."

Medical associations have not been particularly outspoken on the right to health in general but have tended to focus on specific rights. The WMA's principal documents in this respect are the Declaration of Lisbon on the Rights of the Patient and the Declaration of Ottawa on the Right of the Child to Health Care. In 1998 the WMA General Assembly adopted a Resolution on Improved Investment in Health Care that, while not mentioning a right to health, nevertheless urged governments and intergovernmental agencies to provide the requisite conditions for the exercise of this right, especially access to good quality health care.