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A human rights approach to Human Trafficking for Organ Removal

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Socio-economic conditions should not be determinants for an organ “donation”.

Abstract

Human trafficking for organ removal (HTOR) should not be reduced to a problem of supply and demand of organs for transplantation, a problem of organized crime and criminal justice, or a problem of voiceless, abandoned victims. Rather, HTOR is at once an egregious human rights abuse and a form of human trafficking. As such, it demands a human-rights based approach in analysis and response to this problem, placing the victim at the center of initiatives to combat this phenomenon. Such an approach requires us to consider how various measures impact or disregard victims/potential victims of HTOR and gives us tools to better advocate their interests, rights and freedoms.

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Notes

  1. Use of the term “victim” of HTOR in this paper relies upon the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power that defines “victims” in the broad sense as persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are violations of national criminal laws or of internationally recognized norms relating to human rights. The term victim is an advancement from prior terms used in the discourse including “organ seller/vender,” “commercial living (organ) donor.” COFS is transitioning to the preferred term “trafficked person” or in this case, “person trafficked for organ removal” (PTOR) to better express individuals’ agency in this experience. Above all, COFS’ intention is to seek legal recognition that these persons have had rights abused by being trafficked for organ removal.

  2. According Article 3 (2) of the United Nations Convention on Transnational Organized Crime an offence is transnational in nature if:

    1. a.

      It is committed in more than one State;

    2. b.

      It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State;

    3. c.

      It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or

    4. d.

      It is committed in one State but has substantial effects in another.

  3. This section is borrowed from the first author’s elaboration of these points in briefings to US Congressional committees on this issue, January 2012. See, http://tlhrc.house.gov/docs/transcripts/2012_1_23_Organ_Trafficking_Briefing/Budiani_testimony.pdf.

  4. The language on this issue in the Guiding Principles may have facilitated some of this understanding about how organs travel. For example, the WHO Guiding Principles state the need to “prevent trafficking in human materials” and that a shortage in supplies has “stimulated commercial traffic in human organs.” The Guiding Principles also acknowledge that the commercial traffic in human organs are especially from living donors who are unrelated to recipients and that such commerce is related to the traffic in human beings. See http://www.who.int/transplantation/Guiding_PrinciplesTransplantation_WHA63.22en.pdf.

  5. http://www.coe.int/t/dghl/standardsetting/cdpc/CDPC%20documents/CDPC%20(2012)%2021%20-%20e%20-%20Draft%20Convention%20against%20Trafficking%20in%20Human%20Organs.pdf.

  6. Abuse of a position of vulnerability occurs when an individual’s personal, situational or circumstantial vulnerability is intentionally used or otherwise taken advantage of, to recruit, transport, transfer, harbour or receive that person for the purpose of exploiting him or her, such that the person believes that submitting to the will of the abuser is the only real or acceptable option available to him or her, and that belief is reasonable in light of the victim’s situation. In determining whether the victim’s belief that he or she has no real or acceptable option is reasonable, the personal characteristics and circumstances of the victim should be taken into account”. The Guidance Note is available from: http://www.unodc.org/documents/human-trafficking/2012/UNODC_2012_Guidance_Note_-_Abuse_of_a_Position_of_Vulnerability_E.pdf. The Issue paper on which it is based is available from: http://www.unodc.org/documents/human-trafficking/2012/UNODC_2012_Issue_Paper_-_Abuse_of_a_Position_of_Vulnerability.pdf.

  7. Victims of Human Trafficking for Organ Removal in India. Report by the Coalition for Organ-Failure Solutions. Forthcoming December 2013.

  8. The Guiding Principles are explicitly referenced in India’s national transplant law.

  9. See, WHO ‘Guiding Principles on Human Cell, Tissue and Organ Transplantation’ (2010) available at: https://docs.google.com/document/d/1FawvwUconlqSYaKSlXBD4SyAv0fDxNXdtv9CWYuTdYs/edit?ndplr=1; The updated guidelines specify conditions for live donation, underlining the importance of informed consent. This is outlined in Guiding Principle 3: ‘Live donations are acceptable when the donor’s informed and voluntary consent is obtained, when professional care of donors is ensured and follow-up is well organised, and when selection criteria for donors are scrupulously applied and monitored. Live donors should be informed of the probable risks, benefits and consequences of donation in a complete and understandable fashion; they should be legally competent and capable of weighing information; and they should be acting willingly, free of any due influence or coercion.’

  10. See also, Coalition for Organ Failure Solutions (COFS): www.cofs.org; Organs Watch http://sunsite.berkeley.edu/biotech/organswatch/; Budiani-Saberi and Mostafa (2010). http://cofs.org/home/wp-content/uploads/2012/06/Care-for-Commercial-living-donors-Feb-28-2011-Wiley-copy.pdf; Goyal et al. (2002), Zargooshi (2001a, b), Naqvi (2007), Shimazono (2006).

  11. Fundamental rights accorded the status of jus cogens (i.e. prohibitions against slavery, torture, genocide etc.) cannot be suspended, limited or compromised, even in a situation of national emergency (Vienna Convention on the Law of Treaties, 1969, Article 53).

  12. Such countries include the UK, US, China, India, Pakistan, and South Africa, amongst others. For laws pertaining to human trafficking in the United Kingdom, see: Sexual Offences Act 2003 (United Kingdom). URL: http://www.legislation.gov.uk/ukpga/2003/42/pdfs/ukpga_20030042_en.pdf Accessed 16 March 2013; Immigration Act 1971 (United Kingdom). URL: http://www.legislation.gov.uk/ukpga/1971/77/pdfs/ukpga_19710077_en.pdf Accessed 16 March 2013. In the United States, see: The Victims of Trafficking and Violence Protection Act of 2000 (United States). URL: http://www.state.gov/documents/organization/10492.pdf Accessed 15 March 2013. In China, see: Criminal Law of the People’s Republic of China Arts 237–363 (China). URL: http://www.unhcr.org/refworld/docid/3ae6b5cd2.html Accessed 16 March 2013. In India, see: The Immoral Traffic (Prevention Act) 1956 (India). URL: http://www.info.gov.za/view/DownloadFileAction?id=77866 Accessed 16 March 2013. In Pakistan, see: Prevention and Control of Human Trafficking Ordinance 2002 (Pakistan). URL: http://www.fia.gov.pk/pchto2002.htm Accessed 16 March 2013. In South Africa, see: Sexual offences and Related Matters Amendment Act 32 OF 2007 (South Africa). URL: http://www.info.gov.za/view/DownloadFileAction?id=77866. Accessed 15 March 2013.

  13. Despite national laws prohibiting organ sales in Egypt, Pakistan, India and the Philippines the organ trade continues.

  14. ILO developed a sub-regional program in 2004 to combat trafficking in children and young people for labor and sexual exploitation in the Balkans and Ukraine. It has conducted a study on trafficking patterns in Albania, Moldova, Romania, and the UK based on surveys of returned migrants, as well as comprehensive case studies of France, Germany, Russia and the UK.

  15. Article 53 of the Vienna Convention on the Law of Treaties 1969, 1155 United Nations Treaty Series 33, provides that jus cogens is’ a peremptory norm if general international law’ which is ‘accepted and recognized by the international community of states as whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.

  16. See, Article 2 (3) of the ICCPR; Article 13 of the European Convention on Human Rights; Article 7 1(a) of the African Charter of Human Rights; Article 6 of the Convention Against all Forms of Racial Discrimination; Article 14 of the Convention Against Torture; Article 39 of the CRC; Article 83 of the Migrant Workers Convention; Article 73 of the Statute of the International.

  17. See, Budiani Testimony (2012) Recommendation No 2 states that: To recognize the participation that US citizens or legal residents of the US have in the chain of demand in HTOR practices, the United States government should extend the extraterritorial jurisdiction of the National Organ Transplant Act (NOTA) to ban US citizens or legal residents to engage in organ tourism.

  18. Up until 2008 insurance companies provided reimbursement to Israeli patients who had purchased organs abroad. See, The Organ Transplant Law (2008) available at: http://www.declarationofistanbul.org/index.php?option=com_content&view=article&id=267:israel-transplant-law-organ-transplant-act-2008&catid=83:legislation&Itemid=130; According to Dr. Jacob Levee Over the last few years, it is estimated that about 200 Israelis have travelled to China for kidney transplants and about 15 have sought heart transplants. Several dozen others have bought kidney transplants in the Philippines.

  19. In recent recommendations to US Congressional Committees, the recommendation was made that HTOR should be included in the US law—the Trafficking Victims Protection Act (TVPA). Congressman Chris Smith, sponsor of the reauthorization of the TVPA, has stated his consideration to amend this law to in fact include HTOR. See, http://tlhrc.house.gov/docs/transcripts/2012_1_23_Organ_Trafficking_Briefing/Budiani_testimony.pdf.

  20. Up until 2008 insurance companies provide reimbursement for Israeli patients who had purchased organs abroad. See, The Organ Transplant Law (2008) available at: http://www.declarationofistanbul.org/index.php?option=com_content&view=article&id=267:israel-transplant-law-organ-transplant-act-2008&catid=83:legislation&Itemid=130; According to Dr. Jacob Levee Over the last few years, it is estimated that about 200 Israelis have travelled to China for kidney transplants and about 15 have sought heart transplants. Several dozen others have bought kidney transplants in the Philippines.

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Acknowledgments

The authors thank Milbert Shin, Francis Delmonico and Anne Gallagher and for their thoughtful expert comments on this paper.

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Authors and Affiliations

  1. Coalition for Organ Failure Solutions (COFS), Bethesda, MD, USA

    Debra Budiani-Saberi

  2. School of Law, Queen’s University Belfast, Belfast, Northern Ireland, UK

    Seán Columb

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  1. Debra Budiani-Saberi
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  2. Seán Columb
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Correspondence to Debra Budiani-Saberi.

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Budiani-Saberi, D., Columb, S. A human rights approach to Human Trafficking for Organ Removal. Med Health Care and Philos 16, 897–914 (2013). https://doi.org/10.1007/s11019-013-9488-y

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