Organ trafficking and human trafficking for the purpose of organ removal, two international legal frameworks against illicit organ removal
| Published date | 01 September 2019 |
| Date | 01 September 2019 |
| Author | Sylwia Gawronska |
| DOI | 10.1177/2032284419862387 |
| Subject Matter | Articles |
Article
Organ trafficking and human
trafficking for the purpose
of organ removal, two
international legal frameworks
against illicit organ removal
Sylwia Gawronska
University of Antwerp, Belgium
Abstract
Although illicit organ removal is not a new crime, globalisation and economic inequality, under-
pinned by shortages of organs, have amplified this problem to such an extent that governments are
now urged to take comprehensive punitive measures. Some manifestations of illicit organ removal
are already considered criminal offences under domestic transplant legislations and under the
framework of human trafficking. At the same time, illicit organ removal has also been categorised
as a form of organ trafficking by the Council of Europe Convention against Trafficking in Human
Organs, which calls upon governments to establish as a criminal offence a broad range of illicit
organ- and transplant-related activities. As the crime of illicit organ removal lies at the centre of
both human trafficking and organ trafficking, questions arise as to the exact differences between
the two frameworks, their overlaps and their legal consequences. This article aims to provide
answers to those questions by conducting a comparative analysis of both legal frameworks in terms
of their development, scope, criminal law provisions and implementation. This analysis is followed
by an examination of their overlaps and the consequences of prosecuting under either framework.
A set of recommendations is presented aimed at implementing both legal frameworks in a way that
guarantees effective prosecution while maximising the protection of victims.
Keywords
Organ trafficking, human trafficking, transplant law, illicit organ removal, international law
Corresponding author:
Sylwia Gawronska, Research Group Personal Rights and Property Rights, Faculty of Law, University of Antwerp,
Venusstraat 23, 2000 Antwerp, Belgium.
E-mail: Sylwia.Gawronska@uantwerpen.be
New Journal of European Criminal Law
2019, Vol. 10(3) 268–286
ªThe Author(s) 2019
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DOI: 10.1177/2032284419862387
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Introduction
Organ transplantation is the preferred, and sometimes the only, treatment for patients who suffer
from organ failure. The increasing gap between the number of patients in need of an organ and the
number of organs obtained through altruistic donations has created an unresolved tension between
demand and supply. This organ shortage encourages desperate patients to go outside the domestic
transplant system to buy an organ. The World Health Organisation (WHO) estimates that up to
10%of all transplants worldwide are performed using an organ from the black market.
1
However,
this statistic is 10 years old, and in the light of the existing shortage of organs worldwide, ageing
populations, growing numbers of unhealthy communities and increased mobility, this figure may
well be much higher.
Organs obtained on the black mark et usually come from poor, uneducated and vulnerable
donors.
2
To have their organ removed, these donors receive anything between US$500 and
US$10,000, if they are paid at all.
3
Often donors only cooperate because they are deceived or
coerced.
4
Illicit removal of an organ frequently leads to negative health consequences for organ
donors,
5
which may cause a further decline in their standard of living.
6
In addition, implantation of
these illicitly obtained organs results in increased post-transplant risks to organ recipients.
7
More-
over, they undermine the value of altruistic donation an d the confidence of the public in the
authorised transplant system.
8
The illicit removal and transplantation of organs can be conducted within domestic borders and
internationally. They tend to occur in places with transpla nt regulations that are marred with
loopholes or weakly enforced. They ca n be conducted by specialised and organised criminal
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Information’, Bulletin of the World Health Organization 85(12) (2007), p. 955.
2. E. Pearson, Coercion in the Kidney Trade? A Background Study on Trafficking in Human Organs Worldwide (Eschborn:
Deutsche Gesellschaft fur Technische Zusammenarbeit, 2004), pp. 15–17; A. Tong, J. Chapman, G. Wong, et al., ‘The
Experience of Commercial Kidney Donors: Thematic Synthesis of Qualitative Research’, Transplant International
25(11) (2012), pp. 1138, 1149.
3. M. L´opez-Fraga, K. Van Assche, B. Dom´ınguez-Gil, et al., ‘Human Trafficking for the Purpose of Organ Removal’, in
R. Piotrowicz, C. Rijken and B. Uhl, eds., Routledge Handbook of Human Trafficking (London: Routledge, 2018),
p. 120; A. Pascalev, J. de Jong, F. Ambagtsheer, et al., ‘Trafficking in Human Beings for the Purpose of Organ Removal:
A Comprehensive Literature Review’, in F. Ambagtsheer and W. Weimar, eds., Trafficking in Human Beings for the
Purpose of Organ Removal: Results and Recommendations (Lengerich: Pabst, 2016), pp. 15, 49–51.
4. L´opez-Fraga et al., Op. cit., pp. 120, 125; Pascalev et al., Op. cit., pp. 15, 36.
5. M. Goyal, R. Mehta, L. Schneiderman, et al., ‘Economic and Health Consequences of Selling a Kidney in India’, JAMA
288 (2002), p. 1589; L. Turner, ‘Commercial Organ Transplantation in the Philippines’, Cambridge Quarterly of
Healthcare Ethics 18 (2009), p. 192.
6. D. Budiani-Saberi and F. Delmonico, ‘Organ Trafficking and Transplant Tourism: A Commentary on the Global
Realities’, American Journal of Transplantation 8 (2008), pp. 925, 929; J. Koplin, ‘Assessing the Likely Harms to
Kidney Vendors in Regulated Organ Markets’, American Journal of Bioethics 14 (2014), p. 7.
7. A. Anker and T. Feeley, ‘Estimating the Risks of Acquiring a Kidney Abroad: A Meta-Analysis of Complications
Following Participation in Transplant Tourism’, Clinical Transplantation 26(3) (2012), p. 232; N. Inston, D. Gill, A. Al-
Hakim, et al., ‘Living Paid Organ Transplantation Results in Unacceptably High Recipient Morbidity and Mortality’,
Transplant Proceedings 37(2) (2005), p. 560.
8. G.M. Danovitch, A.B. Leichtman, ‘Kidney Vending: The ‘‘Trojan Horse’’of Organ Transplantation’, Clinical Journal
of the American Society of Nephrology 1 (2006), pp. 1133, 1135; K. Van Assche, ‘Combating The Trade in Organs: Why
We Should Preserve the Communal Nature of Organ Transplantation’, in B. Van Beers, S. Sterckx, and D. Dickenson,
eds., Personalized Medicine, Individual Choice and the Common Good (Cambridge: Cambridge University Press,
2018), pp. 77, 107–110.
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