"Criminal Liability for the Trafficking and Sale of Human Organs under Iraqi and Saudi Law: A Comparative Study of the Legal Basis and Mechanisms of Criminalization"

Abstract

This research aims to study the legal basis for criminal liability for the transfer and sale of human organs in Iraqi and Saudi law, through a comparative analytical approach that shows how the constitutional commitment to health care interacts with the principle of protecting human dignity in establishing criminal liability. The research has shown that Iraqi law is based on a normative gradation starting from Article 31, first and second of the Iraqi Constitution of 2005, which requires the state to care for public health, organize health institutions, and supervise them, then moving to Article 2 of the Law on Human Organ Transplantation and Prevention of Trafficking No. 11 of 2016, which makes the purpose of the law the regulation of transfer and transplantation and the prevention of trafficking, in addition to Articles 410 and 411 of the Iraqi Penal Code No. 111 of 1969 (amended), which punish intentional assault leading to death and causing death by error. The research also revealed that the Saudi system is based on restricted permissibility, as shown in Article 2 of the Saudi Human Organ Donation System, which permits donation or bequest of donation in accordance with the provisions of the system and in a manner that does not conflict with the provisions of Islamic Sharia, and Article 5, Paragraph 1 of the Executive Regulations, which requires that organ transplant operations be performed in licensed health facilities with coordination with the center before performing the operations. The research concluded that both systems agree in preventing the human body from becoming a place of trafficking, with a difference in the angle of foundation: Iraqi law establishes liability on constitutional health care and special legislative regulation, while Saudi law establishes liability on restricted permission and organized institutional implementation, with both sharing the consideration of valid consent, capacity, and respect for dignity as essential conditions for the legitimacy of donation.