Less than a century ago, it was unimaginable to take a part of body from one human being and transplant it into another and that both of them could live afterwards. Today kidney transplants are nearly routine operations in many hospitals, although the development in medical technology cannot as such guarantee the availability of organs for transplantation. All the current methods of organ procurement have failed worldwide to supply in the demand. As a result, flourishing black markets in human organs have developed worldwide, also involving India. It has therefore become a serious problem to secure sufficient transplant organs both to satisfy the need of very ill patients and to combat criminal activities in this field.
The main aim of this research paper is to argue that monetary compensation to organ donors has become a must in the transplant business – firstly, to secure more (hopefully enough) legal organs to satisfy transplant needs, and secondly, in this way to curb illegal organ trafficking.
As this is clearly a business, a discussion of the monetary value attached to different human organs is a starting point. Although the data is insufficient, it is clear that organ trafficking is serious and that drastic counter measures are necessary – particularly to protect desperate patients and tricked donors. This raises two issues: the content and impact of relevant legislation, and a different, more effective system for procuring sufficient transplant organs in a legal way.
As a possible solution to the problem of insufficient transplant organs, it will be suggested that a system of monetary compensation to voluntary donors be implemented. As this might not be sufficient to achieve what should be achieved, another proposal is that an organ market be legalised, i.e. that buying and selling of organs by patients and willing sellers be allowed, but regulated. The research paper ends with arguments dealing with some objections, particularly moral objections, to such a system.
The very first successful organ transplant was a kidney transplant, which was performed in Boston, Massachusetts in 19542. Since then, organ transplantation has developed into a well-established clinical therapy, which saves lives and improves the quality of life for thousands of patients every year. Kidney, liver, heart, and lung transplantations are now used for those patients who might be suffering end-stage organ failures. There are many different types of transplants; bones are used to repair damage due to trauma or cancer, and pancreas transplantation helps diabetic patients. According to the Global Observatory on Donation and Transplantation, almost 100,000 patients worldwide receive a solid organ transplant each year.
The spread of medical transplant technology around the world has saved many lives but has also created a shortage of organs for transplant. Meanwhile, the success of organ transplantation has led to a sharp increase in the number of patients on waiting lists to receive new organs. In other words, the demand for organs has continued to rise but the supply of available organs has not. The shortage is due to the fact that the vast majority of organs are taken from people who are fatally injured, such as motorcycle or car accident victims. The number of sick people needing transplants far outstrips the number of organ donors involved in accidents every year. As a result, it can take years for a patient to get their opportunity for a transplant and most countries do not have enough organs to meet the demand. Many people who would be able to live if they could have an organ transplant will die because of the shortage of organ donors. Tens of thousands of people die every year while waiting for an organ transplant.
Most organs for transplant come from brain dead people who have sustained some kind of fatal injury. Organs are harvested, or removed, from brain dead people who cannot survive without being attached to a machine so that other people can be given the gift of life. Organ harvesting must be done while the person is still technically alive (breathing and with a heartbeat) because organs begin to deteriorate immediately upon death. However, it is only legal to use organs from a brain dead person if there is consent, or agreement, from the person.
Countries such as Austria and Norway have a system of donor registry called presumed consent. Presumed consent is an organ donation policy that assumes every citizen is a willing donor unless they opt-out formally by putting it in writing. The main advantage of a system of presumed consent is the very high rate of organ donors-nearly everyone is considered one unless they declare in writing that they do not want their organs harvested in the event of an accident. Singapore was the first country in the world to develop a policy of presumed consent and many European nations followed their example. As a result, certain countries, such as Belgium and Spain, are able to come much closer to meeting their national demand for organ donation.
Other countries have a system of organ donor identification called “opt-in”. In this system, an individual must give explicit permission to have their organs harvested by joining an organ donation registry that identifies them as a donor in the event of an accident. In the United States, for example, citizens must legally declare their status as an organ donor, usually by indicating so on an official form of ID such as a driver’s license. Sometimes, if the person was not a participant in an organ donor registry, a family member such as a husband, wife, parent or child can make the decision to donate their organs upon brain death. It is generally agreed upon that the opt-in system produces less donors and therefore contributes to the organ shortage. Other countries have neither a system of presumed consent nor an opt-in system which results in the “wasting” of almost all available organs in cases of fatal accidents.
The selling of human organs is forbidden as unethical in most countries in the world. However, donation of organs is considered a personal choice and a gift from one person to another. Although most organ donations are from brain dead people, healthy living people can also donate certain organs. Now, he question is how and why would a healthy person decide to donate one of their internal organs? The main organs that are harvested voluntarily from healthy people are the kidneys and the liver. The human body is equipped with two kidneys and we can live long and healthy lives with just one. For example, in a case where a child is in need of a kidney transplant, his mother may volunteer to have her own kidney harvested in order to save his life. If she matches his blood type, then the transplant will most likely be very successful and both mother and son can live long healthy lives with proper medical care.
The human liver has the power to regenerate itself and therefore a half of a liver can be taken from a willing donor and be transplanted to a patient in need. In most countries, live organ donation is completely legal if no one is paid for their organs. However, thousands of people are waiting on donor transplant lists and many of them know they are going to die if they don’t receive a transplant. In their desperation for a donor, people that have money to pay are seeking out living donors who need money so badly that they are actually willing to sell their internal organs to a stranger.
The number of patients waiting for organ transplants is giving rise to a black market for human organs in which organs are bought and sold illegally on an international scale. The illegal trafficking of human organs is likely to continue and increase in frequency because the demand for legally donated organs is not being met. International action is needed to address the problems associated with human organ trafficking because the demand for human organs is likely to continue to grow due to several factors:
- Since the 1970’s, pharmacueticals have been developed to prevent organ transplants from being rejected by the recipient. As a result, transplants are much safer and more successful, so more people want them.
- Changes in diet and lifestyle are causing significant increases in diseases such as diabetes that lead to organ failure, and thus, the need for transplants.
- Widespread taboos against dismembering the human body, even in the event of a fatal accident or illness, prevent many people from participating in organ donation registries. Cultural taboos prevent countries from enacting policies of presumed consent which help to meet some of the demand for organs. Therefore, organs from braindead accident victims will continue to be “wasted”.
Origins of Illegal Trade:
- The growth of illegal trade has stemmed from the increasing scarcity of transplant material available for waiting patients. For example, in 2004, there were approximately 80 000 patients wait listed for organ transplants in the United States. Concurrently in Europe, there were approximately 40 000 patients on kidney transplant waiting lists and another 120 000 on dialysis treatment. At the same time, the European Parliamentary Assembly estimated that by 2010, the waiting time for a transplant would increase from 3 to 10 years. The increase in waiting time is an incentive for acquiring an organ from any source.
- The difficult logistics of obtaining organs may also be attributed in part to cultural practices in different environments. In Asia, South America, and Africa, there is “widespread resistance” to using organs from cadavers, because of cultural, personal and religious reasons, along with the related high costs.
- On the other side of the issue, many donors are impoverished and attracted to the prospect of receiving monetary payment in exchange for an organ. They may be unaware of the risks that can ensue from a transplant operation, or deceived by brokers or middle-men as to the amount of money or compensation they will ultimately receive. For example, donors in India received approximately US $ 800 per kidney, according to a special by National Geographic reporter Lisa Ling, who also noted that although this sum of money is a decent amount, “when it runs out they can't sell more organs.” Furthermore, any problems that the remaining kidney might be affected by, results in a higher risk for the donor – a risk that many impoverished individuals are not familiar with. Nor are they always aware beforehand, of the inherent dangers of operations, which may be fatal, or result in serious infections.
- It is important to recognize that although poverty plays a role in eliciting a supply of organs, that supply can only be realized when there is a complimentary lack of legislation or enforced legislation in a region. In Tamil Nadu, India, researchers noted that a large part of the trade in human organs stemmed from the ambiguity of the Transplantation of Human Organs Act (1994), and the “low monitoring capacity of the regulatory authorities.”
Types of Organ Harvesting:
There are two types of organ harvesting that occur illegally. The first is harvesting from cadavers, which is currently a vague and under-substantiated area of study. Indeed, there is “little conclusive evidence” supporting this practice as a legitimate enduring one, but reports of organ theft persist, especially in Latin America.
The more common practice is that of live donor transplants, which are said to produce better medical material than that which comes from deceased sources. Live donors may be involved illegally in one of two ways. The first is by deception, where an individual has their organ removed without their consent. Second, and more commonly, individuals are partially coerced or experience post-operation fraud. An example of the contrast might be seen between a person who is told that the operation is simple and harmless, versus one who does not receive compensation for their organ after it has been removed from their body.
Consequences of Harvesting The first consequence of harvesting organs in a certain location is a phenomenon known as “transplant tourism,” whereby individuals travel to a specific destination in order to purchase a kidney from an underprivileged donor that is willing to sell. The process includes travelling overseas, interviewing potential donors and brokers, and having the transplant in that country for a cheaper, faster procedure than one would experience in their own country. Studies suggest that transplants received in this way are prone to a “greater risk of infection and higher rates of rejection and death.” In the same way, donors are not always aware of the risks of the procedure, nor are receivers who opt for this type of treatment.
Aside from transplant tourism, harvesting may potentially result in organ trade at an international level: smuggling rings are indeed becoming an increasingly lucrative business across the world. A recent string of high-profile busts of international smuggling has increased awareness about the far-reaches of this practice. Rings have been identified in numerous countries, including Brazil, India, Israel and the United States.
The Organ-Exporting Countries:
India was a commonly known organ-exporting country, where organs from local donors are regularly transplanted to foreigners through sale and purchase. Although the number of foreign recipients seems to have decreased after the enactment of a law banning the organ trade (the Human Organ Transplantation Act of 1994), the underground organ market is still existent and resurging in India. The Voluntary Health Association of India estimates that about 2000 Indians sell a kidney every year. The drop in foreign recipients in India was accompanied by an increase in the number of foreign recipients in other countries, such as Pakistan and the Philippines.
In Pakistan, according to the Sindhi Institute of Urology, approximately 2000 renal transplants were performed in 2005, of which up to two-thirds were estimated to have been performed on foreigners. In the Philippines, data obtained from the Renal Disease Control Program of the Department of Health, National Kidney Transplant Institute, show that of the 468 kidney transplants in 2003, 110 were for patients from abroad. There is no comparable data for Egypt but a considerable number of patients from neighbouring countries are believed to undergo organ transplantation there.
In China, around 12 000 kidney and liver transplants were performed in 2005. Most of the transplant organs were alleged to have been procured from executed prisoners, a practice which itself is criticized by the international community. In the absence of paid organ donors, a question may be raised regarding whether the deceased organ transplants in China constitute an organ trade. Yet the lack of established rules about the allocation of organs, coupled with the prioritizing of foreigners due to their ability to pay and the existence of brokers, have been widely reported. These factors have led to the view that deceased organ transplants for foreigners in China do constitute part of the international organ trade. The number of foreign recipients in China is difficult to estimate, but a media report offers circumstantial evidence that over half of the 900 kidney and liver transplants performed in one major transplant centre in 2004 were for non-Chinese citizens from 19 countries.
The lack or insufficiency of a legal framework or enforcing mechanism in these countries has been highlighted by the public media and local experts. However, the Chinese and Pakistani governments recently have been taking steps to curtail the international organ trade, which may change their respective situations.
Other countries where kidneys are reportedly sold include Bolivia, Brazil, Iraq, Israel, the Republic of Moldova, Peru and Turkey. In Colombia, where 69 of 873 organ transplants were performed on foreigners, there is an allegation that organs of deceased donors were used in the organ transplants that were commercially arranged for foreigners. The case of the Islamic Republic of Iran merits a special mention: paid kidney donation is practised legally but there is a strict regulation of the allocation of organs to non-local citizens, thereby restricting the international organ trade. In contrast, the Philippine government is moving towards institutionalization of paid kidney donation and acceptance of foreign patients.
The Organ-Importing Countries:
The term “organ-importing countries” is used here to refer to the countries of origin of the patients going overseas to purchase organs for transplantation. A report by Organs Watch, an organization based at the University of California, USA, identified Australia, Canada, Israel, Japan, Oman, Saudi Arabia and the USA as major organ-importing countries.
Yet transplant tourism has become prevalent in many other countries of all continents and regions. Data are available through surveys conducted by health authorities and professional societies in these regions. It should be noted that in some countries the number of patients going overseas for kidney transplantation outweighs the number of patients undergoing kidney transplantation locally. More detailed data available from Malaysia and Oman show the shifting destinations of overseas organ transplantation. Although it is premature to undertake a substantial analysis of this issue because comparable data from other regions are not available, these data suggest a heavier reliance on overseas transplantation and transplant tourism in Asia and the Middle East than in other regions. For example, in Canada and the United Kingdom (where, respectively, 1027 and 1914 domestic renal transplants were performed in 2005), it is estimated by local experts that around 30 to 50 patients undergo overseas commercial kidney transplants.,.
Legal Instruments Dealing with Organ Trafficking:
Putting the responsibility of combating the crime of organ trafficking, and of human trafficking in general, in the hands of individual states ignores the transnational nature of trafficking. Therefore, it is important to consider the establishment of international legal initiatives to ensure cooperation between State parties and the international criminalization of organ trafficking. To date, there are no legally binding international instruments devoted to organ trafficking alone. There are several international documents, however, which deal with medicine, health sector and/or human trafficking in general and incorporate the crime of organ trafficking therein. The most important binding international legal document considering human trafficking with the purpose of the removal of organs is the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. The Protocol is directed at human trafficking in general but includes trafficking with the purpose of the removal of organs within the scope of its definition. The Protocol specifies that ratification requires the criminalisation, prohibition and punishment of the act of trafficking and adopting legislation to ensure this, providing assistance and protection for and aid in repatriation of victims of trafficking, and facilitating the establishment of prevention programs for trafficking, the establishment of effective information exchange and training for law enforcement professionals, and measures concerning border control and the security and validity of travel documentation. The Protocol has been signed by 117 and ratified by 158 UN Member States.
The most recent regional binding instrument dealing with the issue of human trafficking in general, and incorporating the crime of organ trafficking specifically is the 2008 Council of Europe (CoE) Convention on Action against Trafficking in Human Beings. The Convention adheres to the definition of trafficking as put forward by the UN Trafficking in Persons Protocol. Being a CoE initiative, the Convention focuses mainly on inter-European cooperation and the prevention of trafficking in persons.
Another notable example of a regional legally binding document incorporating trafficking in organs is the 1997 Council of Europe Convention on Human Rights and Biomedicine, with its supplementary protocol dating from 2002, the Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human Origin. Most notably, Article 22 of the supplementary Protocol states that “Organ and tissue trafficking shall be prohibited”. The requirements for ratification of the Convention and sanctions for the infringement of provisions for Parties put forward by the Convention are further specified in Articles 23 through 25. These include providing “appropriate judicial protection to prevent or to put a stop to the unlawful infringement of the rights and principles set forth in the Convention”, providing persons who have “suffered undue damage resulting from an intervention” with compensations according to the “conditions and procedures prescribed by law”, and the provision of “appropriate sanctions to be applied in the event of infringement of the provisions” by the Parties.
In addition to this Convention, the Council of Europe is currently working on the adoption of the CoE Convention against Trafficking in Human Organs, thereby affirming the need for an international legal document dealing specifically with the issue of organ trafficking. Hence, the CoE will be the first legally binding international instrument dealing solely with the issue of organ trafficking. The document is still pending before the Committee of Ministers and shall include provisions on the measures for the prevention of organ trafficking, protection of victims of the crime and national and international cooperation against organ trafficking and transplant tourism.
Non-binding international instruments
Several non-binding international instruments have been put forward condemning the practice of international organ trafficking as well as providing the international community with recommendations for eradicating the crime. The World Health Organization (WHO) has established a set of guiding principles governing the practice of organ transplantation in general and, more specifically, condemning the commercial sale of organs. As Guiding Principle 5 of the WHO Guidelines states: “Cells, tissues and organs should only be donated freely, without any monetary payment or other reward of monetary value. Purchasing, or offering to purchase, cells, tissues or organs for transplantation, or their sale by living persons or by the next of kin for deceased persons, should be banned.” Also: “The prohibition on sale or purchase of cells, tissues and organs does not preclude reimbursing reasonable and verifiable expenses incurred by the donor, including loss of income, or paying the costs of recovering, processing, preserving and supplying human cells, tissues or organs for transplantation”. The Principles further put forward that “the organization and execution of donation and transplantation activities, as well as their clinical results, must be transparent and open to scrutiny, while ensuring that the personal anonymity and privacy of donors and recipients are always protected”. This Principle condemns the practice of the illicit involvement of medical health care professionals in obscure and questionable organ transplantation activities. Moreover, Resolution WHA63.22, adopted by the 63rd World Health Assembly in May 2010, endorses a revision of the WHO Guiding Principles and further urges Member States to implement the Guiding Principles, to promote increased altruistic donation, to establish transparent systems for the allocation of organs and tissues, and to promote the collection of data relating to organ trafficking.
In addition to the Guiding Principles, the WHO published the Global Glossary of Terms and Definitions on Donation and Transplantation in 2009. The Global Glossary was established in response to a need for internationally recognized definitions and terminology with respect to organ donation and transplantation and urges for the uniformity of data and information for the Global Database on Donation and Transplantation. According to the WHO, the Glossary aims to “clarify communication in the area of donation and transplantation, whether for the lay public or for technical, clinical, legal or ethical purposes.” The Glossary includes existing official definitions as well as newly added definitions and terms.
A remarkable effort has been made on the part of several medical associations to establish international consensus condemning the practice of organ trafficking. Cooperation of the Transplantation Society and the International Society of Nephrology led to the establishment of the Declaration of Istanbul in 2008. The Declaration defines organ trafficking, transplant tourism and commercialism and seeks to achieve consensus regarding the principles of practice and the recommendation of alternatives which address the shortage of human organs, as well as the establishment of professional transplantation guidelines, and signals an effort towards collaboration within the international medical community. The Declaration calls for a reduction of the burden on live donors by increasing organ donation from cadaver donors and urges States to adapt their legislation in order to foster the use of cadaver donations.
Altruism may be the noblest form of giving, especially in the context of organ donation, but how many people have to die before we rethink our procurement strategy? “The incompetence of altruism has meant service for some and death for many others”.
Black markets are flourishing to the detriment of the person giving up his/her kidney, as the middlemen seem to be the parties benefiting the most financially. These illegal practices will not end, but will continue to thrive until it is replaced with a viable alternative. Technology has also made it easier to look for organs across borders and therefore black markets are not linked only to specific countries. The crime of organ trafficking, whether it exists or whether it is only a few isolated incidences, needs to be stopped
 For the purpose of this article, organs refer to vital solid organs: kidneys, heart, liver, lungs and pancreas, but reference to organ trafficking is trafficking of kidneys, because the removal of all other vital organs requires the donor (seller) to be dead.
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Author: Nishit Shah, students, Chanakya NLU, Patna.
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