Victims of HTOR have suffered grave violations of their rights, and should be supported to participate in the investigation and prosecution of their traffickers – including by being provided with appropriate legal counselling and representation. Since HTOR trafficking networks often resort to threats and intimidation to silence victims, special protection should be offered to victims acting as witnesses in criminal proceedings. Absent adequate protection, victims will be reluctant to co-operate with law enforcement agencies, thus severely hampering investigations and prosecutions of trafficking networks.
Preventive measures
The root cause of HTOR is the inability of countries to satisfy the transplantation needs of their patients. In response, through the Madrid Resolution, participants in the Third WHO Global Consultation on Organ Donation and Transplantation called upon governments to pursue self-sufficiency in transplantation as the way to deter the exploitation of the poor and vulnerable.62 Self-sufficiency requires strategies aimed at preventing diseases that will ultimately lead to organ failure (e.g., through vaccination, screening programmes, control of cardiovascular risk factors, lifestyle changes), and at increasing the availability of organs through the development of ethically proper deceased and living donation programmes, in accordance with the WHO Guiding Principles and the Declaration of Istanbul.63 Developing deceased donation to its maximum therapeutic potential, as described in the Madrid Resolution, should be regarded as the most effective strategy to prevent HTOR.
In many settings, living related organ donors face out-of-pocket expenses and loss of income during the process of being evaluated as a potential donor and, if accepted, during the hospitalisation and post-donation recovery; for example, in the USA, donors incur on average US$6,000 in such costs.64 Removing financial disincentives to donate will likely result in increasing the number of unpaid organ donations.65
Essential elements in preventing HTOR are the establishment of a regulatory framework and the development of professional guidelines for the comprehensive screening of prospective living donors, particularly from the psycho-social perspective, so as to rule out coercion, fraud, deception or abuse of a position of vulnerability. In addition, incorporating a living donor advocate into transplant programmes should become a standard practice. Living donation programmes should pay special attention to non-resident living donors – for whom appropriate psycho-social screening may be particularly challenging. Protocols in place should be able to differentiate between proper travel for transplantation and situations where the apparently willing prospective donor may be subject to exploitation. Transplantation practices should be developed within highly regulated and transparent systems subject to strict oversight. Similarly, transplant centres should be subject to specific authorisation and regular audits.
States should develop awareness-raising campaigns aimed at discouraging patients from obtaining an organ by illicit means, as well as outreach programmes targeted at socio-economically deprived populations who are vulnerable to becoming victims of HTOR. Finally, healthcare professionals and public officials dealing with prospective living donors, patients who may seek illicit transplants and segments of populations at risk of exploitative actions should receive adequate information aimed at preventing and combatting HTOR.
The key role of healthcare professionals in preventing and combatting HTOR
It is precisely the distinctive feature of HTOR – the necessary involvement of healthcare professionals and facilities – that provides a unique opportunity to help prevent, detect and combat it.
In their daily practice, nephrologists and other transplant professionals encounter patients who may consider traveling abroad to purchase an organ for transplantation. Taking into account not only the well-being of their patients but also that of the organ vendors, these professionals have the obligation to discourage potential transplant tourists by informing them about the medical, ethical and legal consequences of their choices. The Declaration of Istanbul Custodian Group has developed a brochure for patients, available in many languages, explaining the potential medical risks and legal consequences of transplant commercialism.66
Similarly, healthcare professionals responsible for evaluating donor-recipient couples have an obligation to ensure the legitimacy and motivations of potential donors – with special attention to those cases where one or both members of the pair are not residents of the country. Additionally, both the sophisticated care that is required for monitoring organ function following transplantation, and the need for lifelong immune-suppression in recipients, inevitably bring physicians into contact with illicitly transplanted patients (and victims). It is of the utmost importance that these healthcare professionals report all suspicious cases to the authorities as a crucial measure to detect and dismantle international organ trafficking rings. Finally, transplant professionals directly or indirectly involved in illicit transplant procedures should be made aware that they may be liable to prosecution.
Conclusions
HTOR is a complex, exploitative business that feeds on the desperation of two sets of individuals: victims from whom organs are obtained under coercion or exploitation of their socio-economic vulnerability; and despairing patients in need of a transplant who are faced with the universal shortage of organs. It is also a problem with global dimensions: where brokers, victims and recipients may cross borders in search of countries where legal frameworks are weak or not properly enforced. The frequently transnational nature of HTOR networks, their intricacy and the sophisticated nature of many of the actors and infrastructures involved, necessitates using a multi-faceted approach to combat HTOR that reflects legal, medical and ethical perspectives.
It is essential to establish legal frameworks that provide an explicit basis for the prosecution of transplant-related crimes regardless of the location where they have been committed, and to strengthen international law enforcement co-operation and information exchange with the aim of eliminating unreported or non-investigated cases.
Greater awareness among all actors involved in the fight against HTOR (including INTERPOL, EUROPOL and local institutions), healthcare professionals (including those who might be treating patients considering a transplant with an illicitly obtained organ, and those who may suspect transplant-related crimes when treating their patients), and potential target populations (victims and patients on transplant waiting lists), is essential for effectively preventing and combatting these crimes. Therefore, adequate training of law-enforcement personnel, social workers and healthcare professionals is an absolute necessity. Similarly, specialised services to meet the specific legal, health and social needs of victims of HTOR should be developed and adequately resourced.
Finally, a more rigorous and comprehensive collection of information should yield a clearer understanding of the nature and scope of HTOR, the organisation of the criminal networks involved and their modus operandi. However, one of the challenges in the fight against HTOR is that the data are scattered among criminal justice agencies, medical management and practice groups, human rights organisations, anthropological and political scientists, etc. It is essential to bridge the gaps between such fields to better understand the problem, and in order to develop the most effective tools to prevent and combat HTOR.
Notes
1 Global Observatory on Donation and Transplantation (GODT) (data updated as of 12 February 2015).
2 Shimazono, Y., “The State of the International Organ Trade: A Provisional Picture Based on Integration of Available Information” (2007) 85 Bulletin of the World Health Organization 955, at p. 959.
3 Council of Europe, Social, Health and Family Affairs Committee, Trafficking in Organs in Europe (Council of Europe, 2003); Kumar, S., “Police Uncover Large Scale Organ Trafficking in Punjab” (2003) 326 BMJ 180; Moniruzzaman, M., “‘Living Cadavers’ in Bangladesh: Bioviolence in the Human Organ Bazaar” (2012) 26 Medical Anthropology Quarterly 69; Nullis-Kapp, C., “Organ Trafficking and Transplantation Pose New Challenges�
�� (2004) 82 Bulletin of the World Health Organization 715; Pascalev, A. et al., Trafficking in Human Beings for the Purpose of Organ Removal: A Comprehensive Literature Review (2013) (HOTT Project); Rizvi, S.A.H. et al., “Commercial Transplants in Local Pakistanis from Vended Kidneys: A Socio-Economic and Outcome Study” (2009) 22 Transplant International 615; Scheper-Hughes, N., “The Global Traffic in Human Organs” (2000) 41 Current Anthropology 191.
4 Haken, J., Transnational Crime in the Developing World [A Global Integrity Report] (Washington, DC: Center for International Policy, 2011).
5 Participants in the International Summit on Transplant Tourism and Organ Trafficking Convened by The Transplantation Society and International Society of Nephrology in Istanbul, Turkey, April 30 through May 2, 2008, “The Declaration of Istanbul on Organ Trafficking and Transplant Tourism” (2008) 3 Clinical Journal of the American Society of Nephrology 1227.
6 Shimazono (n.2).
7 Chan, T.E., “The Regulatory Challenges of International Transplant Medicine: Developments in Singapore” (2012) 12 Medical Law International 277.
8 Shimazono, Y., Global Situation: Mapping Transplant Tourism (World Health Organization, Second Global Consultation on Human Transplantation, March 28–30, 2007, Geneva (presentation)), http://apps.who.int/medicinedocs/documents/s15437e/s15437e.pdf.
9 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime; Council of Europe Convention on Action against Trafficking in Human Beings; Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (Article 3(1)(a)(i)(b): “offering, delivering or accepting, by whatever means, a child for the purpose of: … [t]ransfer of organs of the child for profit”).
10 Budiani-Saberi, D. and Columb, S., “A Human Rights Approach to Human Trafficking for Organ Removal” (2013) 16 Medicine, Health Care and Philosophy 897, at p. 904.
11 Budiani-Saberi and Columb (n.10).
12 For a compilation see OSCE Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings, Trafficking in Human Beings for the Purpose of Organ Removal in the OSCE Region: Analysis and Findings [“Annex A: Summary of Cases”] (OSCE, Occasional Paper Series 6, 2013).
13 JA v. State of Israel (2007) SC (Hi) 4044/07 Northern District Attorney v. John (Jet) Allen (Muhammad) [2007] Office of the National Anti-trafficking Coordinator, Ministry of Justice. State of Israel.
14 In the Matter of Lufti Dervishi et al. (The District Court of Pristina) P 309/10 & P 340/10, 29 April 2013.
15 In the Matter of Lufti Dervishi et al. (Court of Appeals of Pristina) PAKR 52/14, 6 November 2015.
16 Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo (Dick Marty, Rapporteur) (12 Dec 2010), AS/Jur (2010) 46.
17 Council of Europe Convention against Trafficking in Human Organs.
18 López-Fraga, M. et al., “A Needed Convention Against Trafficking in Human Organs” (2014) 383 The Lancet 2187.
19 United Nations Office on Drugs and Crime, Assessment Toolkit: Trafficking in Persons for the Purpose of Organ Removal (2015).
20 OSCE Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings (n.12).
21 Budiani-Saberi, D.A. et al., “Human Trafficking for Organ Removal in India: A Victim-centered, Evidence-based Report” (2014) 97 Transplantation 380.
22 United Nations Office on Drugs and Crime (n.19).
23 Scheper-Hughes, N., “Organ Trafficking. A Protected Crime?”, Al Jazeera (5 November 2013).
24 US Department of State, 2013 Human Rights Reports: Kosovo (2013).
25 Council of Europe/United Nations, Trafficking in Organs, Tissues and Cells and Trafficking in Human Beings for the Purpose of the Removal of Organs (Council of Europe, 2009).
26 Tong, A. et al., “The Experiences of Commercial Kidney Donors: Thematic Synthesis of Qualitative Research” (2012) 25 Transplant International 1138.
27 Budiani-Saberi, D.A. and Karim, K.A., “The Social Determinants of Organ Trafficking: A Reflection of Social Inequity” (2009) 4 Social Medicine 48; Scheper-Hughes, N., “Keeping an Eye on the Global Traffic in Human Organs” (2003) 361 The Lancet 1645.
28 Budiani-Saberi et al. (n.21).
29 Pascalev et al. (n.3); United Nations Office on Drugs and Crime (n.19).
30 Scheper-Hughes, N., “Black Market Organs: Inside the Trans-Atlantic Transplant Tourism Trade”, LIP Magazine (3 June 2005); Moniruzzaman (n.3).
31 Budiani-Saberi and Columb (n.10); Budiani-Saberi et al. (n.21); Koplin, J., “Assessing the Likely Harms to Kidney Vendors in Regulated Organ Markets” (2014) 14 American Journal of Bioethics 7.
32 Aronowitz, A.A., Human Trafficking, Human Misery: The Global Trade in Human Beings (Greenwood Publishing Group, 2009); Paddock, C., “Philippine Government Bans Organ Transplants For Foreigners”, Medical News Today (1 May 2008); OSCE Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings (n.12); United Nations Office on Drugs and Crime, Report of the Secretary-General to the Commission on Crime Prevention and Criminal Justice, on Preventing, Combating and Punishing Trafficking in Human Organs (E/CN 15/2006/10) (21 February 2006).
33 Pearson, E., Coercion in the Kidney Trade? A Background Study on Trafficking in Human Organs Worldwide (Deutsche Gesellschaft für Technische Zusammenarbeit, 2004); Scheper-Hughes, N., “Commodity Fetishisms in Organ Trafficking” (2001) 7 Body & Society 31; Scheper-Hughes, N. (n.27).
34 United Nations Office on Drugs and Crime (n.19), at p. 82.
35 Ambagtsheer, F. et al., Organ Recipients Who Paid for Kidney Transplantations Abroad: A Report (2014) (HOTT Project); Muraleedharan, V.R., Jan, S., and Prasad, S.R., “The Trade in Human Organs in Tamil Nadu: The Anatomy of Regulatory Failure” (2006) 1 Health Economics, Policy and Law 41.
36 Bagheri, A. and Delmonico, F.L., “Global Initiatives to Tackle Organ Trafficking and Transplant Tourism” (2013) 16 Medicine, Health Care and Philosophy 887; Council of Europe/United Nations (n.25); Pascalev et al. (n.3); Shimazono (n.2).
37 Anker, A.E. and Feeley, T.H., “Estimating the Risks of Acquiring a Kidney Abroad: A Meta-Analysis of Complications Following Participation in Transplant Tourism” (2012) 26 Clinical Transplantation E232; Hill, T.L., “The Spread of Antibiotic-Resistant Bacteria Through Medical Tourism and Transmission Prevention Under the International Health Regulations” (2011) 12(1) Chicago Journal of International Law 273; Inston, N.G. et al., “Living Paid Organ Transplantation Results in Unacceptably High Recipient Morbidity and Mortality” (2005) 37 Transplantation Proceedings 560; Sajjad, I. et al., “Commercialization of Kidney Transplants: A Systematic Review of Outcomes in Recipients and Donors” (2008) 28 American Journal of Nephrology 744; Tomazic, J. et al., “Multiple Infections After Commercial Renal Transplantation in India” (2007) 22 Nephrology, Dialysis, Transplantation 972; Yakupoglu, Y.K. et al., “Transplantation Tourism: High Risk for the Recipients” (2010) 24 Clinical Transplantation 835.
38 Salahudeen, A.K. et al., “High Mortality Among Recipients of Bought Living-unrelated Donor Kidneys” (1990) 336 The Lancet 725; Bramstedt, K.A. and Xu, J., “Checklist: Passport, Plane Ticket, Organ Transplant” (2007) 7 American Journal of Transplantation 1698.
39 Goyal, M., “Economic and Health Consequences of Selling a Kidney in India” (2002) 288 JAMA: The Journal of the American Medical Association 1589; Koplin, J. (n.31).
40 Jha, V. and Chugh, K.S., “The Case Against a Regulated System of Living Kidney Sales” (2006) 2 Nature Clinical Practice Nephrology 466; OSCE Office of the Special Representative and Coordinator for Combating Trafficking in
Human Beings (n.12); Pascalev et al. (n.3); United Nations Office on Drugs and Crime (n.19).
41 Jafar, T.H., “Organ Trafficking: Global Solutions for a Global Problem” (2009) 54 American Journal of Kidney Diseases 1145; Pascalev et al. (n.3); Turner, L., “Commercial Organ Transplantation in the Philippines” (2009) 18 Cambridge Quarterly of Healthcare Ethics 192; Koplin, J. (n.31).
42 Ghahramani, N., Rizvi, S.A.H., and Padilla, B., “Paid Donation: A Global View: Outcomes of Paid Donation in Iran, Pakistan and Philippines” (2012) 19 Advances in Chronic Kidney Disease 262.
43 Ghahramani, Rizvi, and Padilla –ibid.; Naqvi, S.A.A. et al., “Health Status and Renal Function Evaluation of Kidney Vendors: A Report From Pakistan” (2008) 8 American Journal of Transplantation 1444; OSCE Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings (n.12); Sajjad et al. (n.37).
44 Budiani-Saberi, D. and Mostafa, A., “Care for Commercial Living Donors: The Experience of an NGO’s Outreach in Egypt” (2011) 24 Transplant International 317; Turner, L. (n.41).
45 Tong, A. et al. (n.26); Koplin, J. (n.31).
46 Matesanz, R., “Organ Donation, Transplantation, and Mass Media” (2003) 35 Transplantation Proceedings 987.
47 Cuzin, B. and Dubernard, J.M., “The Media and Organ Shortage”, in Touraine, J.L. et al. (eds.), Organ Shortage: The Solutions (Springer Netherlands, 1995).
48 State v. Netcare Kwa-Zulu (Proprietary) Ltd., Commercial Crime Court, Regional Court of Kwa-Zulu, Natal, Durban, South Africa, Case No. 41 (3 September 2010), unpublished report, 8 Nov 2010, www.unodc.org/cld/case-law-doc/traffickingpersonscrimetype/zaf/2010/state_v._netcare_kwa-zulu_limited.html?tmpl=old. See, also, Allain, J., “Trafficking of Persons for the Removal of Organs and the Admission of Guilt of a South African Hospital” (2011) 19 Medical Law Review 117.
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