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

Abstract

This research examines the legal basis of criminal liability for the transfer and sale of human organs under Iraqi and Saudi law through a descriptive, analytical, and comparative approach that explains how the constitutional obligation to provide health care interacts with the principle of protecting human dignity in establishing criminal liability. The research shows that Iraqi law is based on a normative hierarchy beginning with Article 31, First and Second, of the Constitution of the Republic of Iraq of 2005, which requires the State to safeguard public health and to regulate and supervise health institutions. It then proceeds to Article 2 of the Iraqi Human Organ Transplantation and Prevention of Trafficking Law No. 11 of 2016, which identifies the regulation of organ transfer and transplantation and the prevention of trafficking as purposes of the Law, in addition to Articles 410 and 411 of Iraqi Penal Code No. 111 of 1969, as amended, which punish intentional assault resulting in death and causing death by negligence. The research further shows that the Saudi system is founded on conditional permissibility, reflected in Article 2 of the Saudi Human Organ Donation Law, which permits donation or a bequest to donate in accordance with the provisions of the Law and in a manner that does not conflict with Islamic Sharia, and Article 5(1) of its Implementing Regulations, which requires organ transplantation procedures to be carried out in licensed health facilities in coordination with the competent center before the procedures are performed. The research concludes that both systems converge in preventing the human body from becoming an object of trafficking, although they differ in their foundational approach: Iraqi law bases liability on constitutional health-care obligations and specific legislative regulation, whereas the Saudi system bases liability on conditional authorization and regulated institutional implementation. Both systems nevertheless regard valid consent, legal capacity, and respect for human dignity as essential conditions for the lawfulness of donation.