The Impact of the "Spanish Model" of Transplants in an Assessment of the Incrimination of Organ Trade

Abstract

Trafficking in human organs is largely the result of the shortage of organs for transplant. Consequently, if it is to be prevented, its mere criminalisation does not seem the most appropriate measure. Nevertheless, in Spain, trafficking in human organs is punishable by imprisonment of up to 12 years, even in cases where a sale has been freely agreed between the donor and the recipient. Thus, the aim of the present paper is to determine whether there is any justification for the criminal prohibition of the voluntary sale and purchase of human organs. To this end, on the one hand I will examine the different human organ procurement models that have been proposed to tackle the problem of scarcity (donation model, market model and compulsory model); and on the other, given that Spain has opted for the donation model, I will assess whether the criminal prohibition of trade in human organs respects two of the requirements that justify the existence of a criminal penalty: suitability and need.