ILLEGAL TRAFFICKING AND TRANSPLANTATION OF HUMAN ORGANS

Article 156 bis of the Penal Code punishes the promotion, facilitation, publicity and execution of trafficking in human organs. If the victim is a living person, the penalty is imprisonment for 6 to 12 years, while, if the victim is a deceased person, the penalty is imprisonment for 3 to 6 years.

Typical behaviors

For the purposes of this precept, the Penal Code contains a list of behaviors that constitute organ trafficking:

• Unlawful removal or procurement of another’s human organs, which shall be unlawful if carried out without the free, informed and express consent of the living donor, without the authorization of the deceased donor or if, in exchange for the removal, any remuneration (beyond the reimbursement of expenses or loss of income derived from the donation) is requested or received by the donor or a third party.
• Preparation, preservation, storage, transportation, transfer, reception, importation or exportation of illicitly harvested organs.
• Use of illicitly harvested organs for the purpose of transplantation or for other purposes.

The Penal Code also punishes persons who, for their own benefit or for the benefit of others:

1. Soliciting or receiving, by themselves or through an intermediary, retribution of any kind, or accepting an offer or promise for proposing or recruiting an organ donor or recipient.
2. Offer or deliver, by themselves or through an interposed person, remuneration of any kind to medical personnel, public officials or private individuals on the occasion of the exercise of their profession or position in clinics, establishments or offices, with the purpose of carrying out or facilitating the illicit extraction or procurement or the implantation of illicitly extracted organs.

The recipient of the organ who consents to the transplant knowing its illicit origin is punished, but with a penalty lower by one or two degrees.

Aggravated modalities

The previously described facts are punished with a higher penalty if the victim’s life or integrity is seriously endangered, if the victim is a minor or a particularly vulnerable person, if the perpetrator of the facts is a public official or belongs to a criminal organization or group dedicated to this type of activities….

Criminal liability of the legal person

Article 156 bis, paragraph 7 of the Penal Code provides that legal persons may be criminally liable for the crimes of trafficking and illegal transplantation of human organs. The applicable penalty is a fine of three to five times the profit obtained, and the judge may also impose additional penalties, such as dissolution, suspension of activities, closure of premises, prohibition of future activities, disqualification from obtaining public subsidies and aid, and judicial intervention.