Criminal Lawyers in Organ Trafficking (Art. 156 bis CP)

Human Organ Trafficking: Concept, Modalities and Penalties (Art. 156 bis CP)

Human organ trafficking typified in Art. 156 bis CP, introduced by Organic Law 5/2010 and amended by Organic Law 1/2019, is one of the most serious offences against persons in the Spanish Criminal Code. It sanctions the complete chain of conducts relating to the illicit obtaining and commercialisation of human organs: promoting, favouring, facilitating, advertising or carrying out the illicit extraction or obtaining, transport, reception, preservation or use of human organs outside the legal channels established by Act 30/1979 on Organ Extraction and Transplantation and Royal Decree 1723/2012 regulating obtaining and transplant activities. The protected legal interest is triple: the physical integrity and human dignity of the donor, the life and health of the recipient (against organs not tested or from persons in coercion), and the integrity of the public health system of donation and transplant that is an international reference (Spanish Model of Transplant Coordination-ONT). Consolidated case-law and doctrinal criteria (Memoir of the General State Prosecutor) demand rigorous technical analysis of each case.

The methods of commission are diverse and configure a broad criminal chain. The initial conducts cover the recruitment of vulnerable donors (persons in poverty, migrants in vulnerable conditions, trafficking victims) through deceit or exploitation of economic need. The instrumental conducts include the transnational transport of organs or persons for extraction in jurisdictions with less control, the clandestine health logistics (unauthorised clinics, collaborating professionals), and the advertising or intermediation on the internet or dark networks to connect potential recipients with illicit donors. The terminal conducts are the illicit extraction without valid consent or with consent vitiated by economic consideration, and the implantation to the recipient with knowledge of the illicit origin. The conscious reception of the recipient who knows the illicit origin also integrates the offence under Art. 156 bis.3 CP.

The penalties are severe. The basic offence of Art. 156 bis.1 CP carries 6 to 12 years prison when the organ comes from a living person; if the organ comes from a deceased person, the penalty is 3 to 6 years prison. The penalty one degree higher applies if the victim's life or physical or mental integrity was put in serious danger or if the victim is a minor or especially vulnerable by reason of age, disability, illness or situation, and in its upper half if both circumstances concur (Art. 156 bis.4). Paid intermediation (recruiting donors or recipients in exchange for a reward) and offering rewards to medical staff, officials or private individuals to facilitate extraction or implantation carry the same penalties (Art. 156 bis.2 CP). The conscious recipient who consents to the transplant knowing the illicit origin faces the same penalties, which may be lowered by one or two degrees (Art. 156 bis.3 CP). Medical staff, officials or private individuals acting in the course of their profession or office receive the penalty one degree higher plus special disqualification for the duration of the sentence (Art. 156 bis.5 CP); membership of a criminal organisation or group also raises the penalty by one degree (Art. 156 bis.6), and a legal person faces a fine of three to five times the profit obtained (Art. 156 bis.7). Civil liability ex delicto reaches compensation for physical, psychological and moral damages caused to the victim donor and, where appropriate, to the recipient when health prejudice concurs. The National High Court (Audiencia Nacional) has jurisdiction when the acts were committed outside Spain and must be tried by the Spanish courts (Art. 65.1.e LOPJ); otherwise, the Provincial Court (Audiencia Provincial).

The technical defence is built on four consolidated axes. First, the ignorance of the illicit origin: for the involved healthcare professionals, the proof of reasonable trust in the administrative documentation presented by intermediaries or the coordinating centre, the absence of suspicious objective signs in the extraction or implantation procedure, and compliance with the protocols of Royal Decree 1723/2012 may exclude the typical intent. Second, the validity of donor consent: when free, informed, gratuitous and revocable consent concurs under Act 30/1979 and Royal Decree 1723/2012, there is no illicit trafficking; medical-forensic expert evidence may prove voluntariness. Third, the distinction between legitimate medical cooperation and criminal participation: healthcare professionals who act within their lex artis, without extraordinary economic incentives and following the protocols of the National Transplant Organisation (ONT) are protected by the legitimate exercise of their profession. Fourth, the error of type or prohibition when there is reasonable mistaken belief about the lawfulness of the operation.

In current forensic practice, organ trafficking proceedings in Spain are fortunately infrequent (due to the excellent Spanish Model of Transplant Coordination-ONT with its altruistic and centralised donation system), but present particular complexity when detected. Operations are usually initiated by international judicial cooperation (Europol, Interpol, Eurojust) before transnational plots involving countries with less health control. Organic Law 1/2025 on Justice Service Efficiency, Act 30/1979, Royal Decree 1723/2012, the Council of Europe Convention against Trafficking in Human Organs (Santiago de Compostela, 2015), EU Directive 2010/53 on standards of quality and safety of human organs intended for transplantation and incipient Supreme Court case-law configure the normative framework. At Alonso Sala, with 15+ years' experience in serious offences, we undertake specialised technical defence articulating medical-forensic expert evidence, analysis of compliance with health protocols, cooperation with experts in health law and, where appropriate, representation of vulnerable victims as private prosecution with integral civil claim and access to the protection and assistance measures provided in EU Directive 2011/36 on prevention and combat of trafficking.