Despite their crucial role in the illicit organ procurement and transplant procedure, few healthcare professionals have been prosecuted,22 which suggests that they seem to operate with considerable impunity.23
Facilitators
Successful HTOR operations depend upon the support of a large variety of facilitators. Since transplantation requires medical and testing facilities, howsoever primitive or temporary, administrators of these facilities will generally be involved. Additionally, a number of public officials may also provide assistance; for instance, by arranging licences for medical doctors and medical facilities, approving transplant procedures or issuing visas for victims and recipients. Law enforcement officials’ failure to investigate or prosecute potential criminal activity also contributes to HTOR.24
Other actors whose support may be crucial include minders (who accompany the victims during their travel to ensure, often through coercion, that everything goes according to plan and that victims do not back out), translators (to permit communication with victims and recipients), drivers, insurance companies, travel agencies and airlines and their staff.25
Victims
The paucity of statistical data limits what can reliably be said about the characteristics and recruitment of persons trafficked for an organ. Nevertheless, some general trends emerge from field research performed by medical anthropologists and human rights non-governmental organisations. Brokers target persons in developing countries who are particularly vulnerable due to their desperate economic situation.26 Persons between 20 and 40 years of age are preferred for medical reasons. Trafficked persons are predominantly male, except in India.27
Many trafficked persons learn of organ sales from a member of their family or community, among whom details about recruiters circulate.28 Victims are also recruited through advertisements in local newspapers or on the Internet, or simply present themselves to medical facilities known to be involved.29
In addition to financial desperation and vulnerability, factors such as misleading or fraudulent inducements and coercion also play a role. Victims are often misinformed about the nature of the procedure and the medical consequences of giving up an organ. Sometimes they are told that if they sell one kidney, another one will grow, or that only one kidney is working so the doctor can remove the other one without any risk.30 Invariably, the victim’s vulnerable position and lack of alternatives is abused; studies in a number of countries reveal that nearly all organ sellers regret having done so, and would not have agreed to the sale if their situation had not been so dire.31
Once victims have been recruited, violence and intimidation are often used to force them to go through with the operation and to ensure their silence. In some cases, in the absence of an original agreement to donate, traffickers have used coercion to obtain ‘donors’. For instance, itinerant workers have testified that, lured by the prospect of a job, they went to a location where they were then confined and subjected to an involuntary nephrectomy before being allowed to return home.32 Other reports mention the unconsented-to removal of a kidney from persons admitted to hospital for an unrelated illness or accident, or who had been institutionalised due to mental illness.33 On other occasions, victims were kidnapped and sold or killed for their organs.34
Recipients
Organ recipients are generally individuals from wealthy countries, or members of the elite in developing countries, who are suffering from deteriorating health and have poor prospects for obtaining a legitimate organ transplant (because they are unlikely to rise to the top of the transplant waiting list in their country, have no willing or suitable related living donor, have medical contraindications or live in a country without a transplant programme). Such patients may travel to another country to obtain an organ.
The recruitment of recipients has received considerably less research attention than the recruitment of donors; but the limited data point to a variety of scenarios. In countries with a flourishing underground organ market, patients looking to purchase an organ are brought into contact with brokers through contact persons operating within hospital premises, or through word-of-mouth from fellow patients, friends or family. Patients may not rely on a broker but arrange the contact with the organ seller (e.g., through advertisements or personal acquaintance) and the transplant professionals themselves.35 Alternatively, transplant tourists seeking a transplant abroad often rely on transplant ‘package deals’ (including travel and accommodation expenses, payments to the organ seller and broker and coverage of the medical procedure) offered by transplant centres and brokers operating in international trafficking rings. Frequently, such contact is made through dedicated websites.36
Upon recruitment of prospective ‘donors’ and recipients, examinations of their medical condition and blood and tissue type matching are arranged. This may take place in local health facilities at the place of residence of the parties involved or, alternatively, in the hospital where organ removal and transplant will be performed.
However problematic their situation may be (as they, too, are ‘victims’ of the inadequate treatment resources), recipients are ultimately the ones generating the demand and the necessary funds that propel the activities of the HTOR networks. Whether they should be prosecuted can be debated; but so far, organ recipients have only been used as key witnesses in uncovering and prosecuting HTOR networks.
Consequences for victim/donors, recipients and health systems
Consequences for recipients
The desperation of recipients may lead them to be deceived about the prospects of successful surgery arranged through illicit means. Although reliable outcome data on recipients of an organ obtained from a victim of HTOR are sparse and fragmentary, and likely underestimate the true complication rate, the medical literature is replete with alarming reports about negative health consequences.37 Many transplant tourists require immediate hospitalisation upon their return home because of complications related to the surgical procedure. Compared to recipients of legitimate kidney transplants, transplant tourists experience significantly lower patient and graft survival rates. In addition, they run a much higher risk of the transmission of either a malignancy or an infectious disease such as tuberculosis, hepatitis, malaria, HIV, cytomegalovirus or opportunistic fungal and viral infections.
These adverse outcomes can partly be attributed to the fact that many recipients of trafficked organs have, or would have been, rejected in legitimate programmes due to poor health. Other causal factors include medical negligence, poor matching conducted prior to the surgery, flawed surgical procedures, poor post-operative care and insufficient screening of donors for infections and malignancies.38 Furthermore, follow-up care of recipients is compromised because they are often sent home with non-existent or incomplete medical records (since the hospitals and physicians involved do not want to be identifiable), and whatever records do exist may be in a foreign language.
Consequences for victims
Only very few individuals who attempt to alleviate impoverishment by selling an organ experience any long-term economic benefit or improved life circumstances after the sale.39 Victims frequently receive substantially less than they had been promised.40 Whatever is received is typically exhausted paying off debts and covering immediate needs, such as food, medication and other necessities. Moreover, incapacitated by poor health, weakness and pain as a consequence of organ removal without good medical follow-up, many victims lose their ability to engage in the physically demanding labour on which they had previously subsisted. As a result, within months, many are back in significant debt but in a worse economic situation that, due to the decrease in household income, has a lifelong negative impact upon their entire family.41
Beyond the relapse into deep poverty, the health status of victims deteriorates significantly after nephrectomy. It has been estimated that nearly a third of accepted ‘donors’ would have been rejected had established guidelines been followed.42 In some reports, 27% of the victims were found to be hepatitis
C positive, and many had compromised renal function – suggesting a high long-term risk that they would themselves develop chronic kidney disease. In addition, victims have also been reported to have an increased incidence of surgical complications, severe infections and even death.43 Victims are released from hospital without adequate follow-up care, and are unable to access costly treatments when post-operative health problems arise.44
Many victims also struggle psychologically, with a high prevalence of depression, health anxiety, and feelings of hopelessness, regret and deep shame that deter them from seeking care, even when it is locally available. Frequently, they also experience social isolation, stigmatisation and humiliation by their communities, and outright rejection from their families.45
Consequences for the healthcare system
HTOR erodes public trust in the system of organ donation and transplantation.46 This negative perception may affect ordinary citizens and healthcare professionals – predisposing them against organ donation – with potential detrimental effects on the rates of living and deceased donors.47 Moreover, when recipients are permitted or encouraged to go abroad for a commercial transplant, the pressure on their home country to promote deceased donation is removed. This negative impact also affects altruistic living donation: countries in which organs are obtained from unrelated organ vendors have little or no related donations. Finally, commercial living donation and the acceptance of transplant tourists also undermine a country’s capacity to achieve self-sufficiency in meeting the transplant needs of its own population.
Law enforcement and challenges due to the transnational dimension
Illicit organ transplantation frequently involves acts committed in a number of jurisdictions – which can make prosecution challenging, both legally and practically (in terms of investigating the crime and obtaining the evidence needed for conviction). For example, the defendants in State v. Netcare Kwa-Zulu Limited were St. Augustine’s Hospital in Durban, South Africa, the CEO of the parent company, various employees of the hospital and physicians practicing there and a person who provided English-Hebrew translation – all recruited by an Israeli organ broker, Ilan Perry, who for a fee of between US$100,000 and $120,000 brought Israeli citizens to the hospital to receive transplants using purchased kidneys.48 The kidneys for the first transplants also came from Israelis, who were paid US$20,000; but Perry was then able to recruit Romanians and Brazilians who received on average only US$6,000. The victims underwent preliminary medical screening (for general health, blood typing, etc.) in their home countries and were then ‘chaperoned’ to South Africa, where they were provided with false documents indicating that they were related to their intended recipient – to evade the requirement that unrelated donors be approved by a Ministerial Committee. In November 2010, the hospital owners pleaded guilty under the South African Human Tissue Act 1983 and the Prevention of Organized Crime Act 1998: they admitted to knowingly carrying out transplants with purchased organs, obtaining organs from minors (the Brazilians) and receiving payment for these illicit activities. The company agreed to pay fines totalling almost US$500,000, and to submit to a confiscation order of approximately US$465,000, representing the benefits the company received from the crime. The translator also pleaded guilty,49 but the individual physicians have continued to contest the case, and Mr. Perry has not been charged.
South African prosecutors were able to pursue this case under the THO framework because the key prohibited act, the obtaining and use of a purchased kidney, occurred within their jurisdiction, and violated the domestic THO-type legislation. When the acts necessary to establish essential elements of human trafficking, such as the initial recruitment of an organ ‘donor’ through abuse of his or her position of social and economic vulnerability, occur in a country far from the site of the transplant where the prosecution has been initiated, obtaining the necessary evidence and proving that the defendants (such as the surgeons) were aware that the circumstances constituted human trafficking is much more difficult. Nonetheless, both the Palermo Protocol (in Part III, especially Articles 10 and 13) and the THO Convention (Article 17) mandate States to co-operate in providing evidence and other ‘legal assistance’, and in extraditing persons accused of violating a trafficking statute. The obligation of mutual legal assistance in the combat of cross-border human trafficking has also been affirmed by the European Court of Human Rights.50
Another way in which States have increased the effectiveness of their laws against transplant-related crimes is to give their criminal provisions extraterritorial effect – which can be useful in combatting two sorts of problems. Extraterritorial jurisdiction can be asserted, under the nationality principle, to reach the actions of citizens or residents who go abroad to commit a crime for which they would be prosecuted in their country of residence; this would include transplant tourists who travel to receive illicitly obtained organs, medical professionals who procure, remove or implant such organs and brokers who operate outside their home country.51 Under the passive personality principle, a State might also prosecute someone who has, in another country, removed a kidney from one of its citizens in a manner that violated its domestic human trafficking or organ trafficking laws. Such extraterritorial jurisdiction is designed to bolster the efforts of other countries to prevent transplant-related crimes, as well as to compensate for the inability of some States to enact or enforce laws against the illicit obtaining of organs for transplantation as a result of limited police and prosecutorial resources, corruption and so forth. Based on obligations in the EU Directive and the Council of Europe Convention on Action against Trafficking in Human Beings, a number of countries have enacted such legislation. For example, the human trafficking legislation in the Netherlands, which has since 2005 included organ removal among its prohibited purposes, was extended, in line with the 2011 EU Directive on preventing and combatting human trafficking, to cover Dutch nationals who violate the law abroad, as well as persons who traffic a Dutch citizen or permanent resident.52 In 2008, Israel revised its organ transplant law not only to facilitate deceased and living-related donation of organs, but to make it illegal for Israelis to obtain an organ in violation either of the laws of the country where the transplant is performed, or of Israeli law, which prohibits the buying or selling of organs.53 Perhaps even more significantly, the law restricts reimbursement of transplant costs by insurance companies to those operations that comply with the law; this has dramatically reduced the travel of Israelis to countries such as the Philippines to receive a trafficked organ.54 The successful use of extraterritorial jurisdiction in transplant-related crimes is highly dependent on co-operation of governments in providing evidence that can be used in the courts of the prosecuting State.
Victim protection
All major international organisations in the field explicitly endorse the obligation undertaken by signatories to legal instruments against HTOR not to punish victims of human trafficking for their part in the selling of organs for transplantation.55 This principle also applies to the potential criminal liability of victims of HTOR for other offences, such as the use of forged documents, illegal border crossings or participation in a criminal association.56
In accordance with the international legal framework, measures should be taken to identify victims of human trafficking for organ removal and to protect them in criminal investigation and proceedings; rather than prosecute them, governments have an obligation to assist them in their physical, psychological and social recovery, and to offer them access to effective remedies to obtain compensation and restitution proportionate to the abuse that they have suffered. Since HTOR typically results in life-long health problems for the victims, damages should also cover foreseeable long-term healthcare costs, and possibly also loss of income due to a reduced capacity to earn a living.57
The detection and identification of victims of HTOR are typically much more difficult than for other forms of trafficking. Many victims are unwilling to identify themselves because, for exa
mple, they do not readily self-identify as victims, fear prosecution for having participated in a criminal activity, feel shame and regret or fear retaliation. To overcome such barriers, outreach programmes have been proposed that are targeted at areas where presumed and potential victims of HTOR can be found, and specific protocols to accurately identify and swiftly help victims of HTOR need to be deployed.58 In 2015, the United Nations Office on Drugs and Crime published a toolkit to assist local authorities and non-governmental organisations in this task.59
Another concern, beyond the lack of proper identification mechanisms, is that the services developed to protect victims of human trafficking do not meet the specific health and social needs of victims of HTOR.60 A thorough assessment of the distinct needs of these victims is required in order to design programmes that offer them better assistance. For instance, more than in other forms of human trafficking, victims of HTOR frequently suffer life-long health problems. In line with the Consensus Statement of the Amsterdam Forum on the Care of the Live Kidney Donor, the Ethics Statement of the Vancouver Forum on the Live Lung, Liver, Pancreas, and Intestine Donor, and the Declaration of Istanbul on Organ Trafficking and Transplant Tourism, on-going medical follow-up care should be provided to these victims.61 In addition, support services should include health counselling about the consequences of organ removal; psychological counselling to address the fear, shame, guilt and other psychological problems that typically accompany this type of trafficking; vocational training and employment assistance that take into account the reduced physical abilities that victims frequently experience; and emergency or transitional accommodation that caters to the victims’ health needs.
Routledge Handbook of Human Trafficking Page 28
