en organ trafficking 2004

8/3/2019 En Organ Trafficking 2004

1/40

Deutsche Gesellschaft frTechnische Zusammenarbeit (GTZ) GmbH

Coercion in the Kidney Trade?

A background study on trafficking inhuman organs worldwide

Sector Project against Trafficking in Women


2/40


Published by:

Deutsche Gesellschaft fr Technische Zusammenarbeit (GTZ) GmbH

Postfach 5180

65726 Eschborn

Germany

Internet: http://www.gtz.de

Responsible

Division 42 Governance and DemocracyAnna Erdelmann


Phone: (+49 61 96) 79 4121

Fax: (+49 61 96) 79 80 4121

E-Mail: [email protected]

Internet: http://www.gtz.de/traffickinginwomen

Author

Elaine Pearson

Eschborn, April 2004
http://www.gtz.de/http://www.gtz.de/traffickinginwomenhttp://www.gtz.de/traffickinginwomenhttp://www.gtz.de/


3/40


Table of Contents

Foreword 3

Summary 4

Summary of Recommendations 6

I. The extent of organ trafficking 7

II. Legal and institutional framework 11

III. Socio-economic framework 16

IV. Socio-economic aspects of victims (ethnicity, age and gender) 20

V. Regional dimensions and trends 21

VI. Conclusions: Towards punitive and/or protective measures? 29

VII. Recommendations 31

VIII. Bibliography 37

2


4/40


0 Foreword

The traffic in human beings is flourishing. The global business involving human goods has

now reached dimensions comparable to those of the illicit trades in drugs and weapons.

There are two main reasons why this business is thriving: on the one hand, the harsh living

conditions, mostly characterised by poverty, unemployment and a lack of perspectives in the

countries of origin. On the other hand, the demand that exists in the rich countries of the

West. It is in their shadow economies that the victims are exploited: as cheap labourers and

as prostitutes in the sex industry, through forced marriage and illegal adoption or for the

removal of organs for transplantation. Human rights standards are broadly violated. The

trafficked persons themselves, the majority of them women and children, know far too littleabout their rights or about the appropriate channels to take to assert them.

The German Federal Ministry for Economic Cooperation and Development (BMZ) has

therefore commissioned the Deutsche Gesellschaft fr Technische Zusammenarbeit (GTZ)

GmbH to implement a Sector Project against Trafficking in Women, using funds from the

German federal governments Action Program 2015 for Poverty Reduction. By means of

networking and by developing, collecting and disseminating information and good practices,

the sector project is to help combat the trafficking of women and children and to improve the

counselling offered to its victims.

Even though the issue of trafficking in persons for the purpose of organ removal is included

in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially

Women and Children, attached to the UN Convention against Transnational Organised

Crime (2000)1 (hereafter UN Trafficking Protocol) not much has been published specifically

on the topic. This study aims to give some background information on the scope of organ

trafficking, its trends and regional patterns, how the issue is being addressed and by whom.

It is intended to provide a snapshot of the current situation, gaps in addressing the issue and

ideas for future actions.

The methodology used for the purpose of this analysis entailed desk research and telephoneinterviews with key actors on the issue.2 The results serve as a basic introduction to the

issues involved and the identification of key players involved in combating the trade. Specific

recommendations are provided for future action by governments, NGOs and donors. The

study should be seen as a starting point for discussion amongst interested anti-trafficking

stakeholders.

1 The study uses the definition of organ trafficking (trafficking for removal of organs) as provided underthe Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and

Children, attached to the United Nations Convention Against Transnational Organised Crime (2000)2As the consultant was based in Mumbai, India, more detailed information was readily available aboutthe situation in India. India is widely recognised to be an epicentre for sale of organs worldwide,despite a law against it.

3


5/40


Further information on the subject of trafficking in persons and the work of the sector projectcan be accessed at www.gtz.de/traffickinginwomen. If you have any queries or suggestions,

please contact us at [email protected].

Anna Erdelmann

Project Manager


4
http://www.gtz.de/traffickinginwomenmailto:[email protected]:[email protected]://www.gtz.de/traffickinginwomen


6/40


Summary

Trafficking for the purpose of 'removal of organs' is identified as trafficking under the UN

Trafficking Protocol definition. Despite the recent attention being paid to human trafficking, by

donors, governments and non-governmental organisations, detailed and accurate

information related to removal of organs is lacking, as are any programmes to combat organ

trafficking. Is it because it is simply a sensational media story with little substance in fact? If

we considered trafficking in a narrow way of only those cases of transporting someone with

complete deception or forcing them to have an organ removed, then such cases occur but in

a very small number.

There is certainly a much more significant pattern of organ trafficking in terms of people

being deceived and coerced into selling organs. Most consent to sell a kidney, but there is

deception as to amount of payment for the kidney, and in some cases no payment at all.

Consent may be obtained under varying degrees of coercion. Victims of kidney trafficking

face not only the economic crises that caused them to consider selling their kidney in the first

place but also ill health due to lack of information and lack of adequate health care. Kidney

sellers are not supported to take legal action against traffickers; many are precluded from

filing a criminal complaint as they unwittingly signed false affidavits saying they gave their

kidney away. There are no statistics on the extent of kidney trafficking per se. Experts state,at a minimum, several thousand illegal kidney transplants from live unrelated donors take

place every year. Some of this number, though not all, is trafficked.

Regulation of commercial kidney sales is increasingly a topic of discussion as a means to

deal with illegal organ sales and the resulting negative impact on donor-sellers, especially

those who are trafficked in developing countries. This study looks at both arguments for and

against regulation and the author concludes that effective regulation would require a system

of free long-term health care for kidney sellers, thus placing an incredible financial burden on

the State that developing countries could not bear. Secondly, it seems unlikely that a

regulated trade could prevent organ trafficking, unless and until, issues of corruption aresuccessfully dealt with.

The link between human trafficking and organ trafficking has not been clearly established.

Yet when one compares organ trafficking in terms of coerced sale of organs to trafficking in

women for sex work, one can see there are some similarities. Both sets of 'survivors'

frequently face stigmatisation and discrimination in home communities because of what they

'have done'. Moral arguments condemn outright the use of the body in that way, i.e. sale of

sex or body part. Root causes of both types of trafficking is poverty and discrimination though

gender discrimination may be less significant in relation to organ trafficking in some

countries. Despite these similarities, arguments for and against legalisation of the sex or

organ trade to combat trafficking cannot be equated. From available research in countries

5


7/40


where organ trafficking is a problem, it seems that selling an organ does not improve one'seconomic position and for those living in poverty without access to medical care, does pose

health concerns. These health concerns must be comprehensively addressed in any

regulated system of organ 'sale'.

If we accept that kidney trafficking in a small but significant problem, then measures should

be taken against it in countries where such trafficking is known to exist. Such measures

should focus on providing more information to potential kidney sellers so they are better

informed regarding the risks and impacts of the procedure and of trafficking. Such sellers

should know how to minimise negative impacts. Criminal laws should be amended so that

brokers and medical staff involved in transplantation procedures are criminally responsiblewhilst donor-sellers are specifically free from criminal responsibility unless directly involved in

trafficking others.3 Those who have sold kidneys should have access to information, legal,

medical and social assistance including counselling.

Organ trafficking remains an invisible 'trafficking' sector for existing anti-trafficking initiatives.

It should not be so difficult to extend successful intervention activities for human trafficking to

this new area and new target group, in countries where organ trafficking is a significant

problem. The leading organisation specifically working to this issue, Organs Watch has

conducted research on organ trade in twelve countries (Argentina, Brazil, Cuba, India, Iran,

Israel/West Bank, Moldova/Romania, Philippines, Russia, Turkey, USA and South Africa).

Based on that research, at least all of these countries can be seen to have a significant

trafficking problem.

3Council of Europe, Trafficking in organs in Europe: Recommendation 1611 (2003), ParliamentaryAssembly.

6


8/40


Summary of Recommendations

Recommended action on the governmental level should include to sign and ratify relevant

international instruments, including the Protocol to prevent, suppress and punish trafficking in

persons, especially women and children attached to the UN Convention Against

Transnational Organised Crime (2000) and to modify national laws in order to prevent abuse

of organ transplantation. Furthermore, governments should prevent illegal organ sales by

looking at alternative measures such as increasing the supply of cadaver donations and they

should monitor live unrelated kidney transplantation processes and ensure independent and

comprehensive pre-operative counselling.

On the non-governmental level, NGOs working on trafficking or health issues should

undertake needs assessments in the area of organ trafficking. Needs assessments should

identify the nature and specific issues of organ trafficking in order to be able to provide

specialised services to such victims, if it is deemed to be a significant problem.

Recommendations for donor organizations include to support research for campaigning

purposes in order to encourage effective legislative action and to involve key stakeholders

such as medical professionals, NGOs and IGOs in the discussion of the issue of organ

trafficking and organ sale. Furthermore, donors should support pilot activities in countrieswhere organ trafficking is known to be a significant problem.

7


9/40


I. The extent of organ trafficking

1. Case of Andre4

Andre from a town in Southern Moldova was facing hard economic circumstances when a

Turkish man came to his village and offered him a large amount of money5 to sell a kidney.

Andre finally agreed, and with other Moldovan men he travelled to Turkey. They were

sheltered in a basement lodge for a night and were due to go to the clinic the next day for the

operation. Andre stated that during the night he lost consciousness and when he woke up

the following day, he found he had been operated on in his sleep and his kidney was stolen.

Andre reported the case to Turkish police, who simply deported him back to Moldova. He

subsequently reported the case to local Moldovan police, but due to lack of clear information

about the broker or the place visited in Turkey, there was little the police could do. Andre

reported the case to La Strada Moldovas Hotline because he was upset that he had been

cheated out of the money and was seeking help in locating the Turkish broker.

Andres case is, in many ways, the stereotypical urban myth of organ trafficking. Despite

repeated medical assurances that it is simply not possible to carry out kidney transplant

surgery in a basement or a flat, sensationalist new media eagerly report these kind of stories.

The fact that this case was reported to police and La Strada Moldova suggests this case maybe more than simply a media 'wind-up'. One explanation could be that Andre was kept in a

basement of a hospital and transported to an operating room for surgery. Whilst not much

research has been published on the issue of organ trafficking as such, there is a multitude

of information, reported by the media, of cases like Andres. Stories of illegal kidney sales

and organ stealing abound in every region of the world. There is also a wealth of information

arguing the ethical debates between living and cadaver donations, and debating the ethics of

regulating or abolishing commercial sales of organs. This report aims to summarise some of

the key issues relevant to organ trafficking and place them more clearly in a 'trafficking'

context.

Concerns about organ trafficking are being dealt with as matters for Ministries of Health

rather than Ministries of Justice. Is this the way the issue should remain? Should we be

reforming our laws and policies to respond to the issue? To what extent are people being

deceived or coerced into having their organs removed and to what extent is it a choice?

What would effective prevention and support services for the target group look like? These

are some of the questions considered in this research study.

4Name has been changed to protect the victim's identity.

5Although the exact amount is not clear in this case, according to the COE, Moldovan men may selltheir kidneys for approximately $2500 - $3000.

8


10/40


2. Definition

This research defines trafficking in organs as under the UN Trafficking Protocol. Hence,

trafficking for organs occurs where a third party recruits, transports, transfers, harbours or

receives a person, using threats (or use) of force, coercion, abduction, fraud, deception, or

abuse of authority or a position of vulnerability for the purpose of removing that persons

organ/s. Where children are concerned, there is no need for deception or coercion, the mere

fact of organ removal faciliated by a third party is sufficient. 'Organ' trafficking, is mainly

trafficking of kidneys because removal of virtually all other organs6 requires the 'donor' to be

killed, which is very rare. Strictly speaking, we are talking about removal of organs rather

than removal of human tissues such as blood and corneas.

3. Kidnap and killing and sale of people, especially children, for organs

There is little conclusive evidence of people or children being killed for their organs. With the

growth of human trafficking as a modern day slave trade, one could clearly argue that a

working person enslaved is of higher value than his or her organs. Some media reports have

cited examples of street children in Latin America and children from impoverished families in

Eastern Europe being kidnapped or sold and subsequently murdered for their organs. Media

reports have also connected the illegal adoption trade to trafficking in organs, though this has

not been verified. There are reported cases of children being trafficked within and from Africafor their organs to be used in rituals.

Whilst a handful of cases of murder of children have been proven,7 this has not been

substantiated on a scale and those investigating the allegations put most down widely to

rumour. The Bellagio Task Force found no reliable evidence to substantiate claims of kidnap

or sale and murder of children for their organs.8 Some organisations contacted felt that such

trafficking does exist, yet did not have hard data on the issue.9 Scheper-Hughes of Organs

Watch who has investigated such reports is still uncertain as to their veracity. She feels the

rumours of organ theft continue in Latin America, because they serve to reinforce fears of the

poor about practices of the State, and have more to do with past crimes committed by the

State in abducting and torturing children. She states that the body and organ stealing

rumours of the 1980s and 1990s were at the very least, metaphorically true speaking to

6Also parts of liver can now be transplanted.

7For example, the case of Moses Mokgethi sentenced for the murder of six children in South Africa in1995. Bodies were mutilated and reportedly organs sold, seewww.sunsite.berkeley.edu/biotech/organswatch/hot_spots.html.

8Rothman, D. et. al. The Bellagio Task Force Report on transplantation, bodily integrity and theinternational traffic in organs, Extract from Transplantation Proceedings, 1997; Vol. 29, 2739-45.

9For example, Terres des Hommes and the IOM.

9
http://www.sunsite.berkeley.edu/biotech/organswatchhttp://www.sunsite.berkeley.edu/biotech/organswatch


11/40


the ontological insecurity of poor people to whom almost anything could be done.10

Therumours persist, more recently in South Eastern Europe, yet there is no substantive proof.

4. Sale of organs with deception and coercion

There are a small number of cases of kidneys being removed through total deception or

coercion. For instance, cases have been reported where a victim goes in for an unrelated

illness or accident, but in the hospital, the person's kidney is removed without their

knowledge or consent. Cases such as these have been reported and legal proceedings

brought against medical institutions in Argentina,11 Brazil12 and India.13 Other cases have

occurred where the person is recruited and taken abroad for an unspecified job that then fails

to materialise. Such persons may be kept in a 'safehouse' and are psychologically coerced

into remaining in the house and not venturing outdoors e.g. told that this place is very

dangerous or that they might be imprisoned due to their status as an undocumented

migrant.14 In a few cases, the person may be asked to donate blood, put under anaesthetic

and wake up to find their kidney has been removed.15 The more common scenario is that

after some time in the 'safehouse', the person is given the 'option' to sell a kidney, sometimes

with threats to repay all the travel costs and sometimes heavily coerced into doing so (at

gunpoint). For example, this has happened to Moldovan men trafficked to Turkey for kidney

removal.

The most common type of trafficking of organs, is cases of people who agree to sell their

organ and enter into a formal or informal contract to do so, but once the kidney is removed,

they are cheated and not paid at all, or paid only half or a fraction of the initially agreed price.

Organised crime plays a role in the form of brokers and middlemen coercing the poor to sell

their kidneys (and corneas) by offering economic incentives. Brokers and surgeons

frequently lie about the procedures and consequences of kidney removal. For example, they

tell sellers that the operation is a minor one, that they can return to work immediately, that

one kidney is 'useless' or dormant so this one will be removed etc.16

In Argentina, Brazil and Russia there have been cases of organ removal from bodies ofpeople who have been declared brain-dead prematurely; the medical norms of brain death

have not been adhered to and drugs administered to simulate brain death in comatose

10 Scheper-Hughes, N. 'The Global Traffic in Human Organs', Current Anthropology, Vol. 41, No. 2,April 2000, p.203 (hereafter 'GT').

11Telephone interview, Organs Watch, 9 April 2004.

12Ibid.

13Swami, P. Punjabs kidney industry, Frontline, Vol. 20, No. 3, 2003. Frontline has published aseries on investigative articles regarding trafficking in kidneys.

14 Telephone interview, Organs Watch, 9 April 2004.15

Telephone interview, Organs Watch, 9 April 2004.16

Telephone interview, Organs Watch, 9 April 2004.

10


12/40


patients.17

In Brazil, medical professionals are reluctant to get involved in such casesbecause of the involvement of organised crime.18

5. How many 'trafficked' for organs?

There have been no studies regarding the extent of organ trafficking, and as with other forms

of trafficking, it is extremely difficult to measure due to its clandestine nature. The World

Health Organisation (WHO) estimates that approximately 50,000 kidney transplants take

place every year.19 Of these, an absolute minimum of 15,000 transplants are from live

donors.20

Some of these will be from relatives and some from live unrelated 'donors' wherethe main vulnerability for kidney sale and trafficking ultimately lies. The organisation Organs

Watch estimates that 'thousands of illegal transplants occur every year bought by patients

from the Persian Gulf states, Japan, Italy, Israel, the U.S. and Canada supplied by "donor"

nations, including India, Pakistan, Turkey, Peru, Mexico, Romania and South Africa'.21

Another expert, David Rothman, states illegal organs sales account for at least several

thousand transplants per year.22 What is not clear even from these guestimates is how many

of the sellers were trafficked and how many simply made an illegal transaction to sell their

kidney.

A study in Chennai, India interviewing 305 kidney sellers in the State of Tamil Nadu foundthat the amounts promised to kidney vendors (by both brokers and clinics) were an average

of one third more than what they were actually paid.23 The COE's Rapporteur on organ

trafficking, Gaby Vermot-Mangold stated that of the known cases of kidney sales in Moldova,

nearly all sellers received less money than originally agreed.24 Vivekanand Jha of the

Postgraduate Institute of Medical Education and Research also states that the 'fact' that

kidney donors or sellers do not receive the money promised is common knowledge.25

17 Telephone interview, Organs Watch, 9 April 2004 and see BBC documentary film, The Body Parts

Business, 1993.18Telephone interview, Organs Watch, 9 April 2004.

19 World Health Organisation Executive Board, Human organ and tissue transplantation: Report by theSecretariat, 112

thSession, Provisional agenda item 4.3, EB112.5, 2 May 2003.

20Calculated from World Health Organisation, Report on ethics, access and safety in tissue and organtransplantation: Issues of global concern, Madrid, Spain, 6-9 October 2003, p.6.

21Scheper-Hughes, N. A grisly global trade: A taboo tumbles: The market for "fresh" human organs isexpanding worldwide, with the poor providing for the rich, Los Angeles Times, 3 August 2003.

22Rothman, D. and S. 'The Organ Market', The New York Review of Books, Vol. 50, No. 16, 23October 2003.

23Goyal, M. et. al., 'Economic and Health Consequences of Selling a Kidney in India', Journal of theAmerican Medical Association , Vol. 288, No.13, 2 October 2002.

24Telephone interview, COE Rapporteur, 24 February 2004.

25Jha, V. 'Paid transplants in India: the grim reality', Nephrology Dialysis Transplantation, Vol. 19,2004, p.542.

11


13/40


II. Legal and institutional framework

1. International standards on organ trafficking

a) UN Trafficking Protocol

Article 3 of the UN Trafficking Protocol that defines trafficking in persons, clearly includes

trafficking for the purpose of removal of organs (see above, Definition). States that ratify the

Protocol are under an obligation to introduce comprehensive criminal measures against

organ trafficking and should consider providing measures for the physical, psychological and

social recovery of victims, including (in co-operation with NGOs) counselling and information(especially regarding their legal rights); medical, psychological and material assistance.26

States should also ensure victims have the possibility of obtaining compensation for

damages suffered.27

b) Optional Protocol on the sale of children, child prostitution and child

pornography (2000) to the UN Convention on the Rights of the Child (1989)

This protocol states that the sale of children for the purpose of transferring their organs for

profit should be a criminal offence.28

c) World Health Organisation (WHO)

The WHOs Guiding Principles on human organ transplantation (1991) state that the

commercialisation of human organs is a violation of human rights and human dignity. The

Guiding Principles stated several key principles relevant to organ trafficking:

- Informed consent of the donor is required for voluntary organ transplantation to take

place;

- Transplants can take place between related donors with a proven genetic relationship

and where there is a good match (tissue and blood) between donors;

- Living donations shall be considered secondary to cadaver donations;- Non-commercialisation of transplantation i.e. not to condone organ sales in any

circumstances.

The WHO Executive Board adopted its most recent Recommendation on human organ and

tissue transplantation in January 2004, for submission to the World Health Assembly in May

2004. This recommendation takes note of the need for special attention to risks of organ

26 Part of Article 6 UN Trafficking Protocol.27

Ibid.28

Article 3.

12


14/40


trafficking and urges Member States to take measures to protect the poorest and vulnerablegroups from transplant tourism and the sale of tissues and organs.29

d) World Medical Authority (WMA)

The WMA has condemned sale of organs for transplantation in statements since 1985. The

WMA statement on human organ and tissue donation and transplantation in October 2000,30

states that financial incentives for organ transplantation can be coercive and in all cases

should be prohibited. Special efforts should be taken to ensure the free and informed

consent of donors. This Statement calls on all countries to take effective steps to prevent the

commercial use of organs.

e) Council of Europe (COE)

The European Convention on Human Rights and Biomedicine (1997) states that the human

body and its parts shall not, as such, give rise to financial gain.31 The Convention further sets

out that removal of organs can only take place with appropriate information and consent.32

An Additional Protocol to the Convention on Human Rights and Biomedicine Concerning

Transplantation of Organs and Tissues of Human Origin (2002) prohibits organ and tissue

trafficking,33 deriving a financial gain or comparative advantage from the human body and its

parts,34 and calls on States to provide appropriate sanctions for such trafficking.35 The

Protocol also establishes that donors have a right to information concerning consequencesand risks of donation, their legal rights and the right to independent advice.36 Its sets out that

organ removal should only be carried out once the donor has given free, informed consent 37

and appropriate medical follow-up should be offered to donors and recipients.38 It sets out

the principle of equitable access to transplantation services for patients.39 The Protocol has

been signed by 10 COE states and ratified by one (Moldova).40

29World Health Organisation, Recommendation on human organ and tissue transplantation, 113

th

Session, Agenda item 3.17, EB113.R5, 22 January 2004.30 World Medical Association, Statement on human organ and tissue donation and transplantation,

52nd

WMA General Assembly, Edinburgh, October 2000 (hereafter WMA Statement 2000).31

Article 21.32 Article 22.33

Article 22.34

Article 21.35

Article 26.36

Article 12.37

Article 13.38

Article 7.39

Article 3.40

Stability Pact for South Eastern Europe Task Force on Trafficking in Human Beings, Trafficking inOrgans unpublished note, August 2003.

13


15/40


f) Other steps - Bellagio Task ForceThe Bellagio Task Force Report was an outcome of a pioneering meeting in 1997 involving

transplant surgeons, organ procurement specialists, human rights activists and social

scientists to address issues of transplantation, bodily integrity and the international traffic in

organs.41 The Task Force Report considered the arguments for and against sale of organs

and found whilst the commercialisation of organs from living donors should continue to be

prohibited, systems of sale of organs from cadavers could be considered. 42 The Task Force

report found that existing institutional inequities meant legitimising sale of organs would put

poor and powerless people at even greater risk.43

2. National laws and loopholes

These principles laid down by the WHO, the WMA, the COE and others (such as the

Transplantation Society) have made their way into national law with most countries having

provisions against organ trafficking or sale of organs. Yet despite the existence of laws,

enforcement in most countries has been very weak with few prosecutions of traffickers.

Existing prosecutions have tended to focus on low-level brokers rather than including

medical staff, and traffickers have received light sentences. As stated by the COE, laws in

many countries do not make it clear who is criminally responsible for crime of organ

trafficking.44 The crime should clearly indicate that all medical professionals involved in the

procedures and follow-up care (who behave contrary to medical ethics and do not report it to

the authorities) are also criminally responsible. In India, whilst some doctors have been

charged, no doctor to date has been convicted of organ trafficking, though several hospitals

have been closed down.45 Recipients of trafficked organs also do not fall under the criminal

law and remain largely invisible.

The COE notes that 'some countries such as Germany and Switzerland are moving towards

less restrictive laws allowing for easier unrelated organ transplantation',46 which could be

open to abuse. Legal loopholes enable organ trafficking to flourish in many countries like

India, Turkey and the United States. Paid kidney 'donors' sign affidavits saying they aregiving the organ voluntarily which makes the practice of unrelated organ transplantation

legal. Often the kidney sellers do not know or understand what is the paper they are signing.

This precludes them from taking any further action against the broker, doctor or the clinic. In

Punjab, India, kidney sellers that have been cheated by brokers have been prosecuted and

41See Rothman, D. et. al.

42Ibid.

43Ibid.

44Council of Europe, Trafficking in organs in Europe: Recommendation 1611 (2003), ParliamentaryAssembly.

45Telephone interview, Free the Slaves South Asia Regional Co-ordinator, 19 February 2004.

46Vermot-Mangold. G. (Rapporteur), Trafficking in organs in Europe, Council of Europe ParliamentaryAssembly, Document 9822, 3 June 2003, p.12.

14


16/40


sentenced to two years in jail for making a false affidavit. 47

This is one reason why so fewcomplaints by victims of trafficking are lodged. The COE states that paid donors themselves

should not to be criminalised, unless they become a broker.48

3. Regulation versus abolition of commercial organ trade from live donors

Recommendations concerning an appropriate legal framework to dealing with trafficking of

organs range. More recently, developed countries have shown an interested in systems of

legitimising organ transplantation from live unrelated donors due to concerns about organ

shortage. The argument about regulation of commercial kidney sales to prevent organ

trafficking has some parallels with arguments about legalising sex work in order to stop

trafficking in women, yet the two are certainly not identical in terms of economic and health

impacts on kidney sellers and sex workers.

Some medical professionals and advocates, such as Reddy and Radcliffe-Richards, claim a

legal regulated system of organ transplantation would stop illegal organ trafficking and

profiteering by brokers. If people are going to sell their kidney anyway, why should they not

profit financially from it themselves under a regulated system?49 Proponents of the regulation

system like Dr Reddy, state that an open, transparent system that is carefully monitored in

order to prevent deception and coercion will remove the brokers and middlemen and ensurethat the donor has high standard of medical care.50 They state that the poor post-operative

care that currently results from illegal organ transplants would be reduced if a carefully

monitored regulated system were introduced. Under such a system an NGO would provide

information and counsel the seller before the transplant in order to ensure informed consent

was given, and to ensure a high standard of post-operative care. In fact, Dr Reddy states that

such a system was practised in India and working effectively in some clinics, prior to the

1994 legislation which made commercialisation of organ sales illegal. Clear guidelines must

be set and followed for such a system to work, and it should be a national system in line with

the country's cultural values, not simply enabling rich recipients from abroad to come to poor

countries and profit from such laws.51

Others, such as Scheper-Hughes, say that a regulated system will not work and simply make

the poor and vulnerable even more open to trafficking and exploitation. Two countries

currently have legal systems of organ sale, the Philippines and Iran. Evidence from both of

these countries suggests that brokers continue to exploit the poor and there is a lack of

47 Swami, P. Punjabs kidney industry, Frontline, Vol. 20, No. 3, 2003.48

Vermot-Mangold, G. p.12.49 Radcliffe-Richards, J et. al. 'The case for allowing kidney sales', The Lancet, Vol. 351, p.1951, 1998.50

Telephone interview, Dr Reddy, 24 February 2004.51

Telephone interview, Dr Reddy, 24 February 2004.

15


17/40


decent health care following transplantation.52

Even with a regulated system, it is still alwayspoor people who will be selling kidneys, and in countries like India where the State cannot

pay for health services, in reality only the rich 'sick' will benefit from such a system. It is

unlikely that poor people will be able to have kidney transplants, including those who sell

their kidneys and as a result suffer renal problems later on.

Scheper-Hughes states, in poorer countries, the medical institutions for regulation of organ

transplantation are often under-funded, dysfunctional or readily compromised by issues of

market demand, protection by organised criminal networks and by the impunity of surgeons

willing to perform kidney transplants asking no questions.53 Existing studies that have looked

at impact on seller-donors in developing countries add weight to the prohibitionist argument(see below under socio-economic framework). This is where kidney sales differs from sex

work, because sex workers do often benefit economically from prostitution but in kidney

selling, research appears to indicate there is little economic or other benefit. Most sellers do

not manage to improve their financial situation after selling a kidney54 and many suffer

adverse health conditions that cannot be treated due to lack of money.

III. Socio-economic framework

Scheper-Hughes states in regard to kidney trafficking, in general, the circulation of kidneysfollowed established routes of capital from South to North, from East to West, from poorer to

more affluent bodies, from black and brown bodies to white ones and from female to male or

from poor, low status men to more affluent men. Women are rarely the recipients of

purchased organs anywhere in the world.55

The recipients of kidneys are wealthy, the donor-sellers who are trafficked are impoverished

and in a weak bargaining position. Poor people rarely have kidney transplants, they are more

likely to have cornea and skin transplants for eye problems and burns. It appears the choice

to sell a kidney is economically coerced, yet does a seller in economic difficulties not have

rights over their own body to make a decision to sell a kidney? The existing principles and

international standards state not.

52 Rothman, D. & S. and Zargooshi, J. 'Iranian Kidney Donors: Motivations and relations withrecipients', The Journal of Urology, Vol. 165, No. 2, February 2001, p.386-392 (hereafter Februarystudy).

53Scheper-Hughes, N. 'Keeping an eye on the global traffic in human organs', The Lancet, Vol. 361,10 May 2003, p.1646 (hereafter KE).

54Stability Pact for South Eastern Europe Task Force on Trafficking in Human Beings, Trafficking inOrgans unpublished note, August 2003.

55Scheper-Hughes, N. KE, p.1645.

16


18/40


Jha notes that almost all countries where paid kidney transplants are carried out performpoorly on corruption perception index.56 Corruption is one reason why a regulated system of

sale, however well-meaning is unlikely to work in developing countries. The findings from

research measuring the impact on donor-sellers in India and Iran post-kidney sale are worth

noting.

1. Impact on sellers

Even in countries with some form of regulated systems in place for live unrelated donation, it

appears that such systems are very open to abuse and coercion, and thus trafficking oforgans. People in vulnerable positions who know the recipient, such as the recipient's

employees (often domestic workers and drivers) may be coerced into selling a kidney for

their employer in India, Iran and the Philippines. Kidney sellers suffer many problems after

donating, which are exacerbated due to poverty and lack of medical follow-up, poor health

services in their own country, poor nutrition, work involving doing hard physical labour as

work and high consumption of alcohol.57 The COE states that most illegal donors will in time

suffer severe kidney problems, either resulting in death or forcing them to live on dialysis

treatment.58 Kidney sellers suffer a lot of stigmatisation by community and family. This is

similar to stigmatisation against women trafficked into prostitution. In fact there are various

similar issues regarding reintegration and lack of community and familial support for bothsets of trafficked survivors. In Moldova, a kidney seller interviewed by Scheper-Hughes

stated, 'they call us prostitutes Actually, we are worse than prostitutes because we have

sold something we can never get back'.59

One study published by the American Medical Association interviewed 305 respondents who

sold a kidney (illegally) an average of six years previously, in the state of Tamil Nadu, India. 60

The research found that kidney sellers experienced a worsening of economic status. Annual

family income was reduced on average by 36%, despite the per capita economic status of

individuals in Tamil Nadu improving by 37% in the past ten years. 86% of participants

reported a decline in health after removal. 79% of participants would not recommend othersto sell a kidney. Only 5% of respondents stated altruistic reasons was a major reason in their

decision to sell, thus clearly circumventing the 1994 law in India which supposedly only

allows for live unrelated transplantation for reasons of attachment or affection. 96% sold a

kidney in order to pay off a debt.

56Jha, V. p.542.

57Council of Europe, Trafficking in organs in Europe, Recommendation 1611 (2003), ParliamentaryAssembly.

58Ibid.

59

'Sergei' quoted in Scheper-Hughes, N. KE, p.1647.60Goyal, M. et. al. 'Economic and Health Consequences of Selling a Kidney in India', Journal of theAmerican Medical Association, Vol. 288, No.13, 2 October 2002. The following information in thisparagraph is all obtained from this report.

17


19/40


In Iran the Government regulates kidney selling. There are two government-regulated 'NGOs'responsible for preparatory information and procedures regarding the sellers for kidney

transplants. The founding members of one of these NGOs, the Charity Association for

Support of Kidney Patients, are mainly recipients of kidney transplants.61 This charity is

responsible for more than 90% of kidney transplants in Iran,62 and the regulation system

clearly shows protection of the recipient is at the expense of care of the seller. In Iran, Doctor

Zargooshi has undertaken two studies looking at impact on kidney sellers. The first

Zargooshi study included 100 respondents and was published in February 2001; the second

interviewed 300 kidney vendors and was published in November 2001.

The more recent study63 found poverty prevented 79% of sellers from obtaining follow-upmedical checks after selling their kidney. 85% of those interviewed stated they would not sell

their kidney again if they had a second chance, and 76% strongly discouraged others from

selling. Effects on health ranged from 'somewhat negative' (22%) to 'very negative' (58%).

Zargooshi found there was a lack of medical information given to sellers regarding the

procedures. Poor diet due to poverty increased complications. The report also states that few

pre-operative promises made by buyers to the kidney sellers before transplantation

materialised. None of the vendors were able to remove themselves from poverty and debt or

change their lives radically as a result of selling their kidney. In the earlier February 2001

report,64 76% of those interviewed said that kidney sales should be banned and if they had

another chance they would rather beg (39%) or obtain a loan (60%) instead of selling a

kidney.

Interestingly, Zargooshi does not conclude that banning kidney sales is necessarily the

solution to end trafficking in organs and the difficulties suffered by kidney sellers. He states

the crux of the issue concerning exploitation and subsequent harm suffered by kidney sellers

is due to the root cause of poverty.65 He states the reality of poor countries needs to be

considered, and thus a market driven system is unlikely to be free of brokers (and thus

trafficking). Organs, he concludes should be given freely with no commercial profit. However,

if commercialisation is to take place, it should be done through an impartial and transparentinternational organisation such as the United Network for Organ Sharing or the Red Cross to

ensure no brokers are involved and ensure the long-term health needs of sellers are

guaranteed. Such organs should not be given on the basis of sale to a specific recipient but

on the basis of need.66

61Zargooshi, J. February study.

62Ibid.

63Zargooshi, J. 'Quality of Life of Iranian Kidney "donors"', The Journal of Urology, Vol. 166, No. 5,November 2001, p.1790-1799 (hereafter November study).

64Zargooshi, J., February study.


66Ibid.

18


20/40


Zargooshi's arguments are compelling, especially given the findings of his research. Iforgans are to be sold to enable sellers to benefit financially from sale, the organs should not

go to the highest paying recipient but to the recipient most in need. It goes without saying

that such a system may still be open to corruption and hence trafficking due to desperation of

wealthy recipients and the economic desperation of kidney sellers. Such a system would also

be of great expense, due to the need to ensure long-term health care and the lack of finance

from wealthy recipients. It would need to be financially supported by Government health

institutions. Such an ethical system of transplantation is now being contemplated in Israel, as

a measure to combat organ trafficking (see V. Regional Dimensions and Trends Middle

East).

In reviewing data on the impact of kidney sale in developing countries those who sold a

kidney stated overwhelmingly they would not encourage others to take the same step.

Advocates of the regulatory system, such as Pattinson, state that the negative impacts on

kidney sellers in such studies are a result of the poor conditions of kidney transplant

surgeries, and poor pre- and post- operative care, lack of basic information and counselling

services.67 More developed and wealthy countries such as Israel may have the resources to

fund ethical and safe regulatory systems of transplantation. Yet it is hard to see how such a

system might be applied in countries such as India, that have more immediate and basic

pressing health concerns than improving the facilities and care in regard to transplants.

IV. Socio-economic aspects of victims (ethnicity, age and gender)

The main issue with removal of organs is ensuring a matching of tissue and blood type

between donor and recipient. Beyond that, there are no statistics detailing victims of organ

trafficking as such, but only in relation to organ sellers, some of whom we can assume are

trafficked. Organs Watch states that the majority of kidney sellers worldwide are women and

are not white.68 The profile of sellers seems to vary according to different regions and even

in different regions of the same country, but all are from poor socio-economic backgrounds.

For example, Scheper-Hughes states that most Nigerian kidney sellers are poor, single,

women.69 In Moldova, the COE report interviewed male kidney sellers aged from 18 to 28.70

Most of these men faced deception or coercion in selling their kidneys. Free The Slaves

states that in Punjab, India, those who sell their organs are generally young men, often

labourers, from 18 to 30 years of age.71 Research from other parts of India states that kidney

67Pattinson, S. 'Paying living organ providers', Web Journal of Current Legal Issues, Vol. 3, 2003.

68Scheper-Hughes, N., GT, p.209.

69 Scheper-Hughes, N., KE, p.1645.70

Vermot-Mangold, G. p.7.71

Telephone interview, Free the Slaves South Asia Regional Co-ordinator, 19 February 2004.

19


21/40


sellers are often women. In the Goyal study72

referred to earlier, 71% of 305 respondentswho sold kidneys in Tamil Nadu were women. 60% of these and 95% of the male

respondents were labourers or street vendors. Two out of 305 participants were women who

stated they were forced to sell their kidney by their husbands. This figure could be higher, as

many of the interviews with female kidney sellers were conducted with other family members

present. In the Zargooshi November 2001,73 a minority of female respondents also stated

that husbands had pressured or persuaded them to sell a kidney. A study in India

interviewed 30 kidney sellers of which 27 were women.74 The researcher of this study has

noted that the idea of trading a kidney for a dowry in India has caught on in some

communities. A broker interviewed by Free the Slaves South Asia Regional Co-ordinator told

that, 'people come to me and want to donate their kidney for money, they say they have toget their daughter married'.75

V. Regional dimensions and trends

As with all trafficking, routes seem to criss-cross the globe, with a general flow of organs

from poor to rich countries. Most recipients from rich countries travel to less-developed

countries with less stringent medical laws in order to undergo transplantation. Those

deceived and coerced into selling organs often also travel to other countries for removal, and

in some cases are stranded in these areas, lacking the means to return home and lackingaccess to adequate health care. The organisation, Organs Watch has collected information

on trafficking in organs in different regions of the world and this is a main source of

information for organ trafficking besides the media. Some of this regional analysis is based

on the information of Organs Watch.

1. East and South East Asia

In the People's Republic of China, executed prisoners have organs routinely removed

immediately after execution.76 China issued rules concerning the utilization of corpses andorgans from corpses of executed prisoners in 1984. These state that organs could be

harvested if no one claimed the body, if the executed prisoner volunteered to have their

corpse so used or if the family consented.77 The 1984 rules further say the use of organs

72Goyal, M. et. al.


74Cohen, L. n.d. 'Where it hurts: Indian material for an ethics of organ transplantation', Daedalus.

75Information provided by Free the Slaves South Asia Regional Co-ordinator by email, 9 April 2004.

76See Amnesty International, People's Republic of China, Executed "according to law"? - The deathpenalty in China, AI Index: ASA 17/003/2004, 22 March 2004.

77Rothman, D. et. al.

20


22/40


must be kept strictly secret.78

The informed consent of such 'donors' on death row is notsufficient due to the lack of a transparent process and because of the prisoner's weak

position. Imprisoned and on death row, the system of giving consent is not a free choice and

is open to abuse.79 This type of organ removal, with the questionable consent of victims,

whilst a violation, is not trafficking per se, as it is carried out by the State and thus is not a

criminal offence. n However, there are reports of some cases of such organs being sold

abroad for the profit of illegal brokers.80 Organs harvested in China are used by wealthy

recipients from Hong Kong SAR, Korea, Japan, Malaysia, Singapore and Taiwan.81 This

system regarding use of organs of executed prisoners is also adopted in Singapore, though

the numbers of executed prisoners are far less.82

Recent legislative reform in China occurred last year in Shenshen, Guangdong Province,

giving the Red Cross exclusive responsibility for administration and practice of organ

transplants.83 This change is aimed at reducing the illegal trade in organs of live kidney

sellers, and does not apply to organs of executed prisoners.84

Philippines, like Iran, is one of the few countries in the world that has an open system of

buying and selling organs. Recipients fly in from countries such as Japan and UK. 85 In

interviews conducted by Rothman and Heyes, they found that as in Iran and India, kidney

sellers were worse off both financially and health-wise as a result of selling their kidney.86

2. South Asia - India

India is known as the place in the world where organ trafficking thrives the most. Many

people travel to and within India in order to receive kidney transplants from living donors who

are often reimbursed financially, though rarely receiving the amount of money promised for a

kidney.87 Reports of deception and coercion are rife, thus indicating cases of organ

trafficking. This applies to both kidneys and corneas. One organisation reports that some



80Amnesty International.

81 See Rothman, D. et. al., and Scheper-Hughes, N., GT, p.196.82

Rothman, D. & S.83

Amnesty International.84

Ibid.85

As stated by Professor Nadey Hakim, president of Royal Society of Mediciness TransplantCommittee in Addley, E. A kidney costs 100,000 the donor gets $2000, The Guardian, 4 December2003.

86Rothman, D. & S.

87Goyal, M. et al.

21


23/40


brokers pay kidney sellers between 10,00088

50,00089

Indian Rupees for a kidney.90

Acornea may fetch 160,000 Rupees.91 In terms of cross-border movement, people requiring

kidney transplants come to India for surgery from Middle Eastern countries such as Oman,

Saudi, Bahrain, Kuwait, Oman and the United Arab Emirates and from Canada, Malaysia,

Singapore, the United Kingdom and the United States. The states of Andhar Pradesh,

Karnataka, Punjab and Tamil Nadu are some of the states where illegal kidney sales have

been reported. Organised crime plays an important role in organ trafficking in India.92

Despite a 1994 law prohibiting sale of organs, sales of organs continue as a legal loophole

allows live unrelated donations to be made for the reason of affection or attachment when

approved by an 'Authorisation Committee'.93 Since such Authorisation Committees are notstrictly regulated and reportedly are open to corruption, organ trafficking has continued to

flourish with semi-legality. As health in India is a matter for individual States rather than

national government, the federal Indian government has done little on the issue of trafficking

in organs besides introducing criminal legislation. Enforcement has been weak and

misplaced. In the state of Punjab, intensive media investigations, such as by the magazine

Frontline, uncovered widespread corruption from doctors to high ranking police officers.

Since 1997, the four Authorisation Committees in Punjab allowed 2,384 kidney procedures of

which 1,922 took place in one hospital.94 A number of high-ranking police officers have been

implicated in threatening, intimidating and assaulting donor-sellers who came forward to file

complaints.95 Labourers in Punjab have been lured, deceived and even forced into selling

their kidneys. There are reports that at least 20 labourers have died after selling their

kidneys due to lack of post-operative care.96

The following examples97 illustrates the breakdown of how the costs are divided, and what

the recipient pays for, in a typical case of illegal kidney sale and transplantation in Punjab:

- preparing a case file at the hospital IRS10,000

- preparing a false affidavit IRS10,000

- dialysis (costs vary)

- medicine, tests and extra charges IRS 50,000 upwards

88190.

89 950.90

Telephone interview, Free the Slaves South Asia Regional Co-ordinator, 19 February 2004.91

3,041. Information provided by Free the Slaves South Asia Regional Co-ordinator by email, 9 April2004.

92Scheper-Hughes, N., GT, p.195.

93Article 9(3) Transplantation of Human Organs Act 1994.

94Swami, P.

95 Jolly, A. Top policemen linked to kidney scam, The Asian Age, 4 December 2003 and Swami, P.96

Interview, Free the Slaves South Asia Regional Co-ordinator, Kathmandu, 5 April 2004.97

Information provided by Free the Slaves South Asia Regional Co-ordinator by email, 9 April 2004.

22


24/40


- payment to 'donor' labourer IRS 20,000- payment to broker IRS 20,000 25,000

- payment to Doctor IRS 75,000

Total cost: IRS 185,00098

Reports by Frontline indicate that Nepali labourers have also had kidneys removed and not

received any payment as promised.99 Various anti-trafficking organisations in countries such

as Bangladesh, Nepal and Pakistan have stated trafficking for organs is a problem in their

countries as well. None of these organisations contacted, which responded to information

requests, could state specific cases of organ trafficking, other than in media reports.

3. Europe

As stated under the Legal and Institutional Framework above, the COE has addressed the

issue of organ trafficking since 1987 and most recently published a report in June 2003

leading to COE Recommendation 1611 (2003) on trafficking in organs in Europe. This makes

several important recommendations including:

- All Member States to sign and ratify the Trafficking Protocol;

- All Members States to adopt the WMA Statement on organ transplantation (2000);

- To increase funds to Interpol/Europol on the issue;

- 'Donor' (i.e. origin) countries to work with NGOs in prevention through raising awareness

and peer education, drafting specific criminal provisions against organ traffic and to

implement anti-corruption programmes and poverty reduction strategies;

- 'Demand' (or receiving) countries should maintain strict laws against organ trafficking

covering all medical staff involved and increase measures to improve prosecutions of all

involved in organ trafficking.

The COE report indicates that young people from Eastern Europe sell their kidneys for

$USD2,500 3,000.100 Israelis and Western Europeans recipients travel to Turkey, Estonia,

Bulgaria, Georgia, Romania and Russia for illegal transplants.101 Kidneys are provided by

local kidney sellers or sellers brought from other countries, such as young Moldovan men

brought by bus to Turkey. Journalists in Bulgaria, Moldova, Romania and Ukraine are

researching the issue of organ trafficking in these countries.102

983,516.

99Swami, P.

100 Jolly, A.101

According to Professor Friedlander quoted in Vermot-Mangold, G. p.6.102

Telephone interview, COE Rapporteur, 24 February 2004.

23


25/40


In Moldova, the COE states that organ trafficking is very modest in comparison to otherforms of human trafficking there.103 According to Scheper-Hughes, more than 300 Moldovans

have sold their kidney abroad since 1998.104 A range of coercion methods is used in kidney

selling, and only some of these cases are trafficking. In almost all cases studied by the COE,

donor-sellers did receive money or benefit in return for giving the kidney, though this was

often less than what was promised.105 The critical issue in Moldova is the lack of follow-up

health care available to those who have sold kidneys, stigmatisation and poverty. Organs

Watch stated that as a result of the COE's activities and legal reform in Moldova, now less

organs are being trafficked from Eastern Europe generally and brokers are instead operating

to recruit donors in countries such as Brazil for transplantation in South Africa.106

In Russia, there are such concerns about safety and ethics of transplantation procedures that

an Israeli doctor, (who has helped prepare patients to seek a transplant abroad), specifically

advises them not to travel to Russia. 107 Little else in known about organ trafficking in Russia.

The COE report's Rapporteur states the difficulty in Europe is that Member States do not

admit trafficking in organs occurs in their country, so little action taken to address issue. Most

action on organ trafficking has come from journalists rather than from human rights

organisations. The Head of the IOM's Trafficking Section, Marco Gramegna has stated that

1-2 % of victims of human trafficking in South Eastern Europe are trafficked for the purpose

of removal of organs. No information was received from IOM regarding how that statistics

was measured or any activities by IOM to address issues of organ trafficking in the region.

Newspaper reports allege traffic in organs of children from Albania to Italy and Greece,

however these reports have not been substantiated.108

4. Middle East

Arabs in need of kidney transplants are thought to go to Iran or prior to the invasion of Iraq,

to Iraq. People from Gulf Countries also travel to India for transplants. According to the COE

report, Israeli recipients frequently travel to Turkey, or to Estonia.109 In Israel, the issue of

organ transplantation is especially visible because transplants from live donors can be paidfor under national health insurance. Thus, there is access to some statistics regarding

103Vermot-Mangold, G. p.7.

104Scheper-Hughes, N. Parts Unknown: Undercover ethnography on the organs-traffickingunderworld, Ethnography, Vol. 5 No. 1, 2004, p.47 (hereafter PU).

105Telephone interview, COE Rapporteur, 24 February 2004.



108

See Tournecuillert, V. Press Commentary regarding Albanian article 'Traffic of organs, clinics inDurrs and Fier', Terre des Hommes, Mission Albanie, Projet TACT, Revue de Presse,Traductions.

109Rothman, D. and S.

24


26/40


transplantation. One transplant surgeon states he has seen 300 of his patients go overseasfor kidney transplants in the past few years.110 Very few transplant operations take place in

Israel. This is set to change as Israel has a Bill in progress, soon to be adopted, which will

legalise 'compensated gifting' of organs. The law is being introduced in as a measure to end

trafficking in organs and so-called 'transplant tourism' by Israelis needing a kidney transplant.

Under the proposed law, a system like Eurotransplant would register donors and recipients

and assign organs on basis of need. The Government will compensate the 'donor' for

damages suffered including estimated costs of providing for the donor's long-term health

care and will ensure that the process is done in an ethical way.111 According to the Stability

Pact for South Eastern Europe Task Force Against Trafficking in Human Beings, Israeli

'donors' would receive about $20,000 for a kidney under the proposed law.112

This measureshould be closely monitored to see if it has the desired impact of reducing organ trafficking,

fairly compensating donor-sellers and ensuring the equitable distribution of organs.

As stated above under III. Socio-economic framework, Iran has a legal and regulated system

of organ transplantation. Though this may be seen as a measure to reduce trafficking,

because the seller receives money from the Government for the kidney, in many instances

brokers and recipients are still involved in coercing people to sell kidneys by offering added

economic incentives.113

5. Latin America

Since the 1980s, rumours have abounded in the media about organ stealing, especially from

bodies of children. The rise in the commercial trade in organs and widespread allegations of

organ theft from cadavers led Brazil in 1997 to adopt a universal transplantation (so-called

opt out) system whereby people are automatically presumed to be organ donors unless they

specify not to be. This system (also similar systems in place in countries such as Belgium,

Singapore,114 Spain and South Africa), has been met with much resistance by Brazilians,

especially from the poorer classes due to fears of being declared prematurely brain dead in

order to have access to their organs. Their fears are well-founded according to OrgansWatch, as organised crime gangs deal in human body parts from hospitals and morgues.115

Organ sales from live donors continue due to a lack of regulation by authorities and a tacit

110Finkel, M. This little kidney went to market, New York Times, 27 May 2001.


112Stability Pact for South Eastern Europe Task Force on Trafficking in Human Beings, Trafficking inOrgans unpublished note, August 2003.

113See Zargooshi, J. February and November study.

114Though in Singapore the law is restricted to those who die in road accidents and is only applied tokidneys, not other organs, as stated in Rothman, D. & S.

115www.sunsite.berkeley.edu/biotech/organswatch/pages/hot_spots.html.

25


27/40


acceptance of compensated gifting of organs by medical professionals.116

In terms ofinternational trafficking, Brazilian kidney sellers are being transported to South Africa for

transplantation and recipients are believed to be predominantly from Israel.117 The extent of

coercion of such sellers is not known but should be further investigated.

A 1993 BBC documentary, The Body Parts Business, produced in co-ordination with the

Latin-American NGO, Casa Alianza, reported a large number of cases of organ trafficking

from a mental institution (Montes de Oca) in Argentina in the 1980s. The British Medical

Journal also reported that between 1976 1991 1,321 patients died and 1,400 disappeared

from Montes de Oca institution and when bodies were exhumed, investigators found corneas

and some organs had been removed.118 The documentary also stated that public officialshave investigated organ trafficking in Honduras and Guatemala, but in both cases

intimidation of witnesses or investigators has halted the investigations.

6. USA

In the United States, donor sellers are brought into the country and many unrelated 'donor'

transplants take place. 'Donors' are often sellers and come from countries such as India,

Nigeria, the Philippines or Russia. They may enter the United States under a humanitarian

visa and often claim to be a relative of the recipient.119 These transplants take place due tothe lack of a national transplant screening board, in hospitals that may be suffering financially

and that operate on a 'dont ask, dont tell policy in relation to transplants from live unrelated

donors.120 This enables illegal transplants to take place even more easily than in India with its

requirement of Authorisation Committees. Scheper-Hughes has reported Russians and other

Eastern Europeans are being trafficked to the USA and forced at gunpoint to sell their

kidney.121

7. Africa

There is less trafficking in Africa itself due to lack of organ transplant technology in the

African region, though South Africa is a hub like Turkey for transplantation procedures.

Recipients from Botswana, Mauritius and Namibia, as well as from countries such as Israel,

116Scheper-Hughes, N. GT, p.208.


118Chaudury, V. Argentina uncovers patients killed for organs, British Medical Journal, Vol. 34, 25April 1992 p.1073-1074 as reported onwww.sunsite.berkeley.edu/biotech/organswatch/pages/hot_spots.html

119 Rothman, D. & S.120

Finkel, M.121

Scheper-Hughes, N. PU, p.42.

26


28/40


go to South Africa to buy organs from live donors.122

Organs Watch reports that Nigerians,Brazilians and until recently Moldovans and Romanians, travel to South Africa and are kept

in safehouses before being offered the 'opportunity' to sell their kidney.123 Such sellers have

a kidney removed under immense psychological, economic and sometimes even physical

pressure. In South Africa there have been also allegations of organ theft from cadavers at

medical units and mortuaries. The Human Tissue Act 1983 has a loophole that enables

organs from cadavers to be removed without family consent where reasonable attempts to

contact families have failed.124 Not suprisingly, this has been open to abuse and was of

sufficient concern to warrant an investigation by South Africas Truth and Reconciliation

Committee.125

There was one successful prosecution in June 1995 for a murder of 6 children for sale of

their organs, which were then believed to be used in rituals.126 Media reports do allege this

happening on a broader scale in Southern and Western Africa, for example charges have

recently been brought against a couple in Mozambique,127 yet there is little information

available to verify the extent of such trafficking. Some media reports have indicated children

from West Africa are trafficked to Europe and slain for ritual killings and use of body parts. In

Nigeria, there are cases of children abducted, killed and organs removed for ritual purposes.

Little information is available to verify the extent of such killings and such cases are not

recognised as 'trafficking' in Nigeria.

122Scheper-Hughes, N. GT, p.206 and telephone interview, Organs Watch, 9 April 2004.


124www.sunsite.berkeley.edu/biotech/organswatch/pages/hot_spots.html

125Scheper-Hughes, N. GT, p.205.

126www.sunsite.berkeley.edu/biotech/organswatch/pages/hot_spots.html

127' Forensic experts roped in for body trafficking case', 29 January 2004 reported atwww.sabcnews.com/south_africa/crime1justice/0,2172,72940,00.html

27


29/40


VI. Conclusions: Towards punitive and/or protective measures?

If we consider the experience of other forms of trafficking, an emphasis focusing purely on

more punitive measures against organ trafficking may merely distort the issue. Whilst it is

important for laws against trafficking to be enacted and enforced against all who participate

in organ trafficking (excluding the seller themselves), this is only one way of addressing the

problem. We need to be realistic about the effect the crime control approach has, and how to

balance this with measures to protect the human rights of victims, in this case kidney sellers

who are impoverished and vulnerable. Measures to be taken in this regard should include

ensuring access to information for potential sellers and those who have sold kidneys,

counselling pre- and post-transplantation and ensuring access to health care and legal

services.

Where organ trafficking differs from other forms of trafficking, is in the questions as

addressing demand and supply, in this case not of labour and services, but of organs. As

reports by the WHO and the COE indicate, the demand for organs from live donors is

dramatically increasing with the tremendous advances in transplantation medical technology.

In Western Europe alone, the COE states there are 120,000 patients on chronic dialysis

treatment and nearly 40,000 patients waiting for kidney transplants, 15 30% of whom will

die due to shortage of organs.

128

As Scheper Hughes points out however, the issue of organscarcity is an artificially created need, invented by transplant technicians for an ever-

expanding sick, ageing and dying populationThe real scarcity is not of organs but of

transplant patients with sufficient means to pay for them.129

In addressing issues of demand and supply in relation to trafficking, however invented, we

should look at different ways of increasing legal donations such as cadaver donations and

donations from live and well-off donors, whose higher standard of living may offset the

negative impacts of removal of a kidney. The developments in Israel, of creating an equitable

system of compensated gifting for live kidney 'donors' should be examined closely. Its

application however would be limited to countries that can afford the high cost of health carenecessary for the programme to be effective.

In the media, less attention is paid to the issue of increasing legal cadaver donations

because it lacks the sensationalist intrigue of urban myths and organ traffic. The rate of

cadaver donations is currently decreasing as the rate of living donations markedly increases

in all parts of the world. This may be also due to the fact that the rate of survival is longer

with a kidney from a live donor (21.6 years) as opposed to cadavers (13.8 years).130 The

WHO states that globally in 2000, almost half of all transplanted kidneys were from live

128 Council of Europe, Trafficking in organs in Europe: Recommendation 1611 (2003).129

Scheper Hughes, N. GT, p.198-9.130

According to Professor Freidlander, quoted in Vermot-Mangold, G. p.7.

28


30/40


donors, but this jumps to more than 80% from live donors in low and medium incomecountries.131 Organisations such as the Multi Organ Harvesting Aid Network (MOHAN)

Foundation use methods such as pre-death counselling of family members to increase

cadaver donations of organs and tissues such as cornea. This method has shown some

positive results. Increasing cadaver donations does not necessarily mean engaging in an

opt-out system of compulsory gifting. Attention should be paid to the failures and abuses

within the opt-out system in Brazil and South Africa, where the impact has been to further

disempower the poor and vulnerable.

Trafficking of organs is enabled to flourish because of corrupt medical staff, police and

government officials in many countries. As with all forms of trafficking, efforts must be madeto address corruption. The root cause of poverty is more omnipresent in organ trafficking

than other types of trafficking, and needs to be addressed through sustainable and

empowering poverty-alleviation programmes targeted at the potential donor-seller

communities.

131World Health Organisation Executive Board, p.3.

29


31/40


VII. Recommendations

I. Governments and NGOs

Governments and NGOs, especially of countries where organ trafficking is seen to be a

significant problem i.e. including, but not limited to, Argentina, Brazil, Cuba, India, Iran,

Israel/West Bank, Moldova/Romania, Philippines, Russia, Turkey, USA and South Africa132

should take the following steps:

1. Governments should sign and ratify the Protocol to prevent, suppress and punishtrafficking in persons, especially women and children to the UN Convention Against

Transnational Organised Crime (2000)

European States should ratify the Council of Europe (COE) European Convention on Human

Rights and Biomedicine (1997) and its Additional Protocol on Transplantation of Organs and

Tissues of Human Origin (2002).

2. Whilst most countries have laws against organ sales or organ trafficking, all Government

should take steps to modify these laws so that:

a) The criminal responsibility for organ trafficking should be attributed to all those

involved in the process, including medical staff involved in such procedures;

b) Those who donate or sell organs are not to be held criminally responsible unless they

are also directly implicated in trafficking of other organs.

c) Medical staff treating recipients of trafficked organs after transplantation should not be

penalised provided they behave consistently with medical ethics.

The Council of Europe made recommendations 1. and 2. a) and b), amongst others in

Trafficking in organs in Europe: Recommendation 1611 (2003).

3. Governments in and outside Europe should address the issues and recommendations

made under section 14 in Council of Europe Recommendation 1611 (2003).

4. Governments should review their current kidney transplantation procedures involving live

unrelated donations of kidneys with a view to tightening procedures to prevent illegal

organ sales and look at alternative measures such as increasing the supply of cadaver

donations and increasing ethical live donations.

132Countries where Organs Watch has conducted research.

30


32/40


5. Governments should closely monitor any committees permitting live unrelated kidneytransplants.

6. NGOs working on trafficking or health issues, should consider undertaking a needs

assessment to identify:

a) The extent of organ trafficking and its characteristics (i.e. extent of deception and

coercion in obtaining of organs, failure of kidney 'donors' to receive the payments or

other rewards promised);

b) Socio-economic profiles of organ donors/sellers and those at risk of organ trafficking

(age, gender, ethnicity etc);

c) Existing laws and policies against organ trafficking and on organ transplantationpractices;

d) If organ trafficking is a significant problem, frontline service NGOs should extend their

services to those at risk of organ trafficking and to those who have had organs

removed. Services offered should include information to potential kidney

donors/sellers and those who have sold kidneys, legal, medical and social assistance

including counselling.

e) If organ trafficking is a significant problem, consider what further legislative action or

campaigning is necessary, such as through information campaigns, advocacy on

legal reform and enforcement or other means.

6. Governments should ensure all live, unrelated kidney donors are provided pre-operative

counselling by a party that is independent to the committee granting the transplant (such

as by an NGO).

7. Governments should ensure that the purpose of counselling as recommended under 6.

above, is to ensure that the kidney donor is fully aware of the health risks and

implications associated with removing a kidney and that they are giving free and

informed consent. The counselling should also provide information concerning basic

measures the donor should take post-operatively to maintain good health including diet,work, exercise and other relevant issues.

II. Donors (funders)

The following recommendations list specific activities that donors could take up in relation to

organ trafficking:

Recommendation 1:

AIM: To reduce organ trafficking by encouraging effective legislative action. This could bedone by raising awareness about exactly what human rights violations occur in the context of

organ trafficking and what remedies should be made available to victims of this abuse.

31


33/40


ACTIVITY: Brief research study for campaigning purposes into the impact of organ trafficking

on human rights. Research to be carried out in a number of selected countries such as those

already identified by Organs Watch and to draw on existing materials such as those

produced by Organs Watch that advocate a medical human rights agenda to the organ trade.

The research might consider:

- The tension between the human rights of potential organ recipients (right to life) and the

organ donors human rights (right to life and right to health).

- Ways in which victims of organ trafficking can seek access to justice and access to health

care

- The impact of trafficking on the ethical practice of medicine and the altruistic basis for

organ donation

- What to include in a Donors' Bill of Rights,133 setting out clearly what are the rights of the

donor to be protected.

It should provide examples of specific human rights abuses and this research would be the

basis for follow-up action such as a campaign on organ trafficking which could then be

carried out by a human rights organisation such as Amnesty International.

PARTNERS: possibly Amnesty International or the World Health Organisation (WHO)

Recommendation 2:

AIM: To reduce organ trafficking by inviting key stakeholders to address the issue of organ

trafficking and organ sales.

ACTIVITY: Organise a conference of key stakeholders i.e. medical professionals, NGOs and

IGOs working on issues of health and trafficking to discuss:

-Effective strategies taken to combat organ trafficking at local, national and internationallevels

- Ethical issues and strategies concerning regulation of commercial organ transplantation

- Practical strategies and alternatives to reduce the human rights abuses suffered by

victims of organ trafficking.

- Enactment of a Donors' Bill of Rights,134 setting out the human rights of donors such as

right to free, informed consent, counselling, legal support and immediate health care.



32


34/40


If research carried out in recommendation 1, this meeting might be a good place to launchthe findings and discuss how to implement the recommendations. It is expected that such a

meeting would also provide more information about further potential donor activities.

PARTNERS: World Health Organisation

[Participants might include Organs Watch, Eurotransplant, United Network for Organ Sharing

(UNOS), International Committee of the Red Cross (ICRC), Amnesty International, La Strada

Moldova, Mohan Foundation and others]

Pilot activities in countries where organ trafficking is already a known and

significant problem:

Recommendation 3:

AIM: To reduce organ trafficking by understanding the impact of selling a kidney on donors

and the extent of organ trafficking (in Brazil, India and Moldova)

ACTIVITY: Research to assess the socio-economic and health status of kidney sellers prior

to and post-kidney selling in Brazil, India and Moldova.135 In examining the health status of

kidney sellers, medical tests will be required. This research should also examine the extent

and type of coercion used on kidney sellers, to more accurately determine the extent oforgan trafficking. On the basis of the research, local anti-trafficking NGOs will have a clearer

idea of what kind of follow-up activities and services are required to prevent organ trafficking

and ensure protection of the rights of organ-sellers (see Recommendation 4).

PARTNERS: Organs Watch could co-ordinate such research, potentially working with the

State Government of Pernambuco in Brazil and local researchers in Moldova. MOHAN

Foundation in India.

Recommendation 4:

AIM: To provide information and support services to potential organ-sellers and those whohave had organs removed (in Brazil, India, Moldova and South Africa)

ACTIVITY: NGO currently engaged in anti-trafficking prevention and assistance activities

should expand those activities and tailor them to organ trafficking on basis of outcome of

Recommendation 3. First a needs assessment to be done in conjunction with local human

rights activists that have been working on organ trafficking and with people who have had

organs removed by deception/coercion (this may be done as part of Recommendation 3).

Training by Organs Watch and partners in Recommendation 3 to provide conceptual clarity

on the issue and by health professionals to explain implications of transplantation

135As recommended in Telephone Interview, Organs Watch, 9 April 2004.

33


35/40


procedures. NGO to design and implement prevention and assistance activities which mightinclude:

- Free counselling and information about health and kidney care to potential kidney sellers

and kidney sellers via hotline (or in person)

- Information about t

en organ trafficking 2004

Documents