New Clause 14 - Appropriate consent to transplantation activities when travelling abroad

Health and Care Bill – in a Public Bill Committee at 3:15 pm on 27th October 2021.

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“The Human Tissue Act 2004 is amended as follows—

(1) Section 32 (prohibition of commercial dealings in human material for transplantation) is amended as follows.

(2) In subsection (1), after paragraph (e) insert—

“(f) travels outside the United Kingdom and receives any controlled material, for the purpose of transplantation, where the material was obtained without—

(i) the free, informed and specific consent of a living donor, or

(ii) the free, informed and specific consent of the donor’s next of kin, where the donor is unable to provide consent;

(g) receives any controlled material for the purpose of transplantation for which, in exchange for the removal of organs—

(i) the living donor, or a third party, receives a financial gain or comparable advantage, or

(ii) from a deceased donor, a third party receives financial gain or comparable advantage.

“(1A) For the purposes of paragraphs (f) and (g) in subsection (1), it is immaterial whether the offence of dealing in controlled material for transplantation is caused by an act or an omission.

(1B) For the purposes of paragraph (g) in subsection (1), it is immaterial whether the acts or omissions which form part of the offence take place in the United Kingdom or elsewhere.

(1C) In subsection (1)(g), the expression “financial gain or comparable advantage” does not include compensation for loss of earnings and any other justifiable expenses caused by the removal or by the related medical examinations, or compensation in case of damage which is not inherent to the removal of organs.

(1D) Subsection (1F) applies if—

(a) no act which forms part of an offence under subsection (1) takes place in the United Kingdom, but

(b) the person committing the offence has a close connection with the United Kingdom.

(1E) For the purposes of subsection (1D)(b), a person has a close connection with the United Kingdom if, and only if, the person was one of the following at the time the acts or omissions concerned were done or made—

(a) a British citizen,

(b) a British overseas territories citizen,

(c) a British National (Overseas),

(d) a British Overseas citizen,

(e) a person who under the British Nationality Act 1981 was a British subject,

(f) a British protected person within the meaning of that Act,

(g) an individual ordinarily resident in the United Kingdom,

(h) a body incorporated under the law of any part of the United Kingdom,

(i) a Scottish partnership.

(1F) In such a case, proceedings for the offence may be taken in any criminal court in England and Wales or Northern Ireland.”

(4) In subsection (3), after “subsection (1)” insert “(a) to (e)”.

(5) In subsection (4), after “subsection (1)” insert “(a) to (e)”.

(6) After subsection (4) insert—

“(4A) A person guilty of an offence under subsection (1)(f) or (1)(g) shall be liable—

(a) on summary conviction—

(i) to imprisonment for a term not exceeding 12 months,

(ii) to a fine not exceeding the statutory maximum, or

(iii) to both;

(b) on conviction on indictment—

(i) to imprisonment for a term not exceeding 9 years,

(ii) to a fine, or

(iii) to both.”

(7) Section 34 (information about transplant operations) is amended as follows.

(8) After subsection (2) insert—

“(2A) Regulations under subsection (1) must require specified persons to—

(a) keep patient identifiable records for all instances of UK citizens who have received transplant procedures performed outside the United Kingdom; and

(b) report instances of transplant procedures performed on UK citizens outside the United Kingdom to NHS Blood and Transplant.

(2B) Regulations under subsection (1) must require NHS Blood and Transplant to produce an annual report on instances of UK citizens receiving transplant procedures outside the United Kingdom.””.—

Brought up, and read the First time.

Photo of Alex Norris Alex Norris Shadow Minister (Health and Social Care)

I beg to move, That the clause be read a Second time.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

With this it will be convenient to discuss new clause 15—Regulation of the public display of imported cadavers—

“The Human Tissue Act 2004 is amended as follows—

In subsections (5)(a), (6)(a) and (6)(b) of section 1 (authorisation of activities for scheduled purposes) after “imported” insert “other than for the purpose of public display

Photo of Alex Norris Alex Norris Shadow Minister (Health and Social Care)

In speaking to these new clauses, I stand on the shoulders of the inestimable work done in this place by my hon. Friend Ms Rimmer and in the other place by the noble Lord Hunt of Kings Heath, who is with us for a little while longer before he has an oral question to dispose of in the other place. I note my thanks to them for their leadership. I hope that we can move this important issue on as part of our consideration of the Bill.

In this country, since April, around 2,000 people have received an organ transplant. A person voluntarily deciding to give an organ in life or after their death gives the most precious gift of all. It is an incredibly selfless act that allows another person to live. It is a wonderful thing. We should be very proud of Britain’s record on organ donation over the years, of the research and development in that area and the work that I have no doubt we will yet do.

However, there is a sinister underside to organ donation that I ask the Committee to consider with these two new clauses. In some parts of the world organs are not given freely but are taken by force. Extensive research has shown organ harvesting to be prevalent particularly in China, where the number of organs transplanted swamps the official number of voluntary donations. The organs are generally destined for high-paying customers and come from people such as political dissidents, prisoners of conscience and ethnic minorities.

The Chinese Government say that it does not happen. The World Health Organisation has backed that up, based on a self-assessment made by the Chinese Government, which I did not find very credible. What I do find credible is that, in 2020, the independent China Tribunal found that forced organ harvesting has been committed for years throughout China, on a significant scale. Falun Gong practitioners have been one source—probably the main source—of organ supply. Victims include both the dead and the living. There are whistleblower reports of corneas being harvested.

In January we made progress on the issue through the Medicines and Medical Devices Act 2021—I am sure the hon. Member for Central Ayrshire remembers the exchanges fondly. That opened the door to further regulation of human tissues and I hope that we can move further in this Bill.

Existing legislation does not deal with British citizens who travel abroad. New clause 14 attempts to close that loophole by making it a crime for British citizens, residents and other specified people to be involved in the kill-to-order organ trade. It would end the opportunity for someone to travel to pay for black market organs from a prisoner of conscience and to return to the UK for NHS-funded anti-rejection medication. We must make it clear that involvement in this trade is reprehensible and unacceptable. I think that is a point of consensus across the House, but I am yet to hear what the mechanism is to close the loophole—I think new clause 14 presents a very good one.

New clause 15 deals with the display of human bodies. I used the word “grim” earlier in proceedings, and this is very grim indeed. Regrettably, this is not a theoretical conversation. In 2018 the Real Bodies exhibition took place in Birmingham. Adults and children paid to look at deceased corpses that had been injected with silicon and transformed into real-life mannequins. The bodies were sourced from a lab in Dalian in China. The bodies were able to be displayed without any documents or proven consent, and from a lab that we know receives bodies from the Chinese police.

Whether that sort of exhibition counts as entertainment is a matter for individuals—it is certainly not my sort of entertainment. New clause 15 would ensure that the trade is tightly regulated, so that something like that could not happen again. It would prevent the display of dead bodies of political prisoners and guarantee that proper consent has been received, ensuring dignity and respect for the deceased and their families. I think this is a matter of interest to the Committee, which is why I am seeking to put it in the Bill. It is also of significant interest in the other place. I know there will be conversations on the issue as the Bill progresses.

I am keen to hear from the Minister on these two points. I do not doubt that we are of one mind on the matter. What I would like to know now is what the Government are going to do about it, because these are pressing issues and need action now.

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care)

I can certainly tell the hon. Gentleman that I think there is a consensus across the Committee, and indeed across both Houses, condemning the reprehensible behaviours and practices that he has highlighted. As he says, the challenge is the mechanism, particularly given the concept of extraterritoriality that applies here, so I will talk about that a little bit. I fear we may have to return to this; I suspect, given the complexities, that it may well be their lordships’ House that grapples with it a little further. Although it is not normally the done thing to recognise those in the Public Gallery, as they are not in the Chamber, were there to be a distinguished Peer in the Public Gallery, I would also pay tribute to their work on this. I hope that just about keeps me in order, Mr McCabe.

New clause 14 seeks to extend the provisions in section 32 of the Human Tissue Act 2004, which prohibit commercial dealings in human material for transplantation. The amendment would make it an offence for someone to travel outside the UK to receive such material without free, informed, and specific consent or in exchange for a financial gain or comparable advantage.

We believe that much, albeit not all, of what the clause seeks to achieve is already covered by different aspects of existing legislation. I will talk first about those travelling from the UK, forcibly or otherwise, and the protections available for them from having their organs harvested, and then I will turn to those travelling from the UK to receive organs.

Provisions in the Modern Slavery Act 2015 make it an offence to arrange or facilitate another person’s travel, including travel outside the UK, for the purposes of their exploitation in any part of the world. Travelling covers the arrival or departure from any country, or within any country, and exploitation includes the supply of organs for reward. The Modern Slavery Act applies to the activities of UK nationals regardless of where the travel or the arrangements for it take place.

A person found guilty of that offence could be liable for life imprisonment, and those guilty of aiding, abetting, counselling or procuring it are liable for up to 10 years’ imprisonment. This means that existing extraterritorial legislation already makes it an offence for a UK citizen to purchase an organ for transplant overseas, provided that the purchase involves arranging or facilitating a person’s travel for the purpose of the removal of their organ for sale.

Furthermore, section 32 of the Human Tissue Act already prohibits the giving of a reward for the supply, or for an offer to supply, any controlled material. If a substantial part of an illicit transaction takes place in England, Wales or Northern Ireland, it will constitute an offence under this provision. It could, for example, be an offence to arrange a purchase and pay for an organ from a UK bank account and, likewise, it could be deemed against the law if somebody were to take steps in the UK to find someone who would sell them an organ overseas.

By adding an explicitly extraterritorial offence, as this amendment seeks to do, the interpretation of the existing provisions could be restricted, thereby potentially weakening our existing tools under those two pieces of legislation. As this amendment would prohibit travel outside the UK to receive an organ without the specific consent of the donor or next of kin, there is a chance that it could also inadvertently make it an offence for someone from the UK to receive an organ in a country with deemed rather than explicit consent provisions. This is at odds with our domestic position, where deemed consent is accepted as an appropriate form of consent for organ donation.

There is also the possibility of an unintended consequence of criminalising the recipient, as opposed to the supplier and buyer, of a trafficked organ. It is not difficult to imagine a case of a vulnerable person receiving a transplant abroad, perhaps through arrangements made by relatives, and having been misled as to the provenance of their organ. Under these circumstances, we believe that those who made the arrangements to purchase and supply the organ should be prosecuted and deemed liable, as they already can be under the Human Tissue Act and the Modern Slavery Act.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health and Social Care), Shadow SNP Spokesperson (Europe)

There is a problem with the shortage of organs for transplant generally within the UK. While making it an opt-out system will hopefully help with that, is there not a need to have legislation here so that the market is discouraged or prohibited, and therefore we do not have customers for those organs overseas? If there are customers, the business will exist.

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care)

I take the hon. Lady’s point. I will turn to new clause 15 in a moment, but we are as one in our concern to ensure that the current legislation is as effective as possible and that it does what we want it to do. I will make some further remarks on my future thinking when I conclude.

New clause 14 also seeks to introduce an obligation for specified persons to record and report instances of UK citizens travelling overseas to receive a transplant, but it does not define who the specified persons might be. We would be concerned if doctors and other NHS staff were expected to undertake that role.

Finally, there are some additional minor drafting issues with the new clause. For example, there is inconsistency in the use of terms: “organs” is used interchangeably with “controlled material”, which has a slightly broader meaning, but that is a technical drafting point rather than at the heart of what the hon. Member for Nottingham North is trying to get at.

New clause 15 seeks to modify section 1 of the Human Tissue Act 2004 to prohibit the import of bodies or parts of bodies for the purposes of public display. I believe that the intention behind the new clause has already been met by recent changes to the Human Tissue Authority’s regulatory requirements for public display, through its revised code of practice. Since concerns were raised during the passage of the Medicines and Medical Devices Act 2021 regarding the origin and consent of bodies used in public display exhibitions, the Government have worked closely with the Human Tissue Authority to ensure that robust assurances on consent are fully received, considered, assessed and recorded before any display licences are issued. The Human Tissue Authority strengthens and revises its code of practice on public display, which lays down its expectations for any establishment seeking a licence to display human tissue. The new code, which was laid before Parliament in July, sets out clearly that the same consent expectation should apply to imported bodies and body parts as to such materials sourced domestically. The Human Tissue Authority has made the new code provisions explicit to public display establishments and given specific notice to plastination companies that it believes have been involved in arranging public displays.

Those changes mean that it is already the case that in order for an exhibition of imported bodies to receive a public display licence, it would first be expected to provide proof of the donor’s specific consent to be displayed publicly after they were deceased. If it failed to do so, it would be denied a licence by the Human Tissue Authority for not meeting its standards.

It is for those reasons that I ask the hon. Member for Nottingham North to consider not pressing the new clauses to a Division. However, I believe that more thought can be done in this space. I think that Members on both sides of the Committee, and of the House, seek the same outcomes. I would prefer to see that work done through the existing legislation covering those loopholes. However, if there are gaps and loopholes, I am happy to reflect further on what more might be possible in this space. I hope that is helpful to the hon. Gentleman.

Photo of Alex Norris Alex Norris Shadow Minister (Health and Social Care) 3:30 pm, 27th October 2021

I am grateful to the Minister for his full reply. I do not intend to stress the consensus we have by dividing the Committee. He has given others who may want to look at this at a later stage quite a bit to go at. On resolving the point made in new clause 14, I heard what the Minister said about the scattering of the different parts across the statute book, but a judgment may have to be made about whether that is an effective way to organise the powers. Perhaps creating a consolidated offence would be a more practical and meaningful approach. That is my personal view, but as I have said, there will be lots to go at elsewhere.

I got quite a bit of satisfaction from the Minister’s response to new clause 15. I will go away and look at the Human Tissue Authority’s work. Obviously, primary legislation is always best, but I will see whether that is effective.

Photo of Edward Argar Edward Argar Minister of State (Department of Health and Social Care)

In that context, may I make the hon. Gentleman an offer? If he thinks there is anything specific that my officials could provide to assist him in his reflections, could he let me know and I will be very happy to facilitate it?

Photo of Alex Norris Alex Norris Shadow Minister (Health and Social Care)

That is a very kind offer and I am almost certainly going to avail myself of it. On that basis, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.