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Part 6. The Bigger Picture

Trafficking in Persons for the Removal of Organs: A Human-Rights Approach

Debra Budiani-Saberi et Seán Columb

Texte intégral

1In a growing number of developing countries, destitute individuals are the major or at least a significant source of organs used for transplant procedures. In March 2007, the World Health Organization (WHO) estimated that illicit kidney removals for transplantation account for 5% to 10% of the approximately 65,000 kidney transplants performed annually throughout the world. The WHO estimate is considered the most reliable, albeit conservative, as the number of kidney transplants in China (from executed prisoners) alone in 2006, estimated at 8,000, would have exceeded it (Budiani-Saberi and Delmonico 2008).

2This estimate is also based on credible information from countries where this information can be gathered and does not include figures in countries where allegations of organ trafficking occur and where there is little transparency, reporting, or regulation of transplant practices.

3The long-lasting negative health, economic, psychological, and social consequences for victims of human trafficking for organ removal (HTOR) have been documented in studies in Egypt, India, Pakistan, the Philippines and Iran (Goyal et al. 2002; Zargooshi 2001; Shimazono 2006; Naqvi et al. 2007).

4Significant progress has been made in recent years to strengthen laws intended to curb organ trafficking in key countries that host the organ trade, such as India, China, Pakistan, the Philippines and Egypt. However, in these and many other countries, renal failure is now reaching proportions similar to that of tuberculosis, in large part because of the astounding growth in diabetes worldwide. With transplants as the preferred therapy for renal failure, demand for kidneys will continue to outpace supplies. Inequalities in this equation are exacerbated as the world’s destitute persons serve as organ suppliers. Until nations can build transparent, reliable, and protective systems of organ donation through altruistic donations from healthy individuals and deceased donors, poor, and vulnerable individuals will continue to be at risk for being targeted to supply organs to privileged patients.

  • 1 Use of the term “victim” of HTOR in this paper relies upon the United Nations Declaration of Basic (...)

5Various initiatives to address HTOR have been developed since the late 1980s. Since 1987, the World Health Organization (WHO 2010) developed and updated guiding principles for human organ transplantation. Since 2006, The Transplantation Society (TTS) has worked in collaboration with the WHO to employ these principles and in 2008 partnered with the International Society of Nephrology (ISN) to develop the Declaration of Istanbul on Organ Trafficking and Transplant Tourism (Declaration of Istanbul 2008). The United Nations Office on Drugs and Crime (UNODC) has principal carriage for human trafficking within the United Nations system and has addressed organ “trafficking” in several of its criminal justice resources on human trafficking, most notably the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons (hereinafter the UN Trafficking Protocol) (UNODC 2000; UNODC 2008). Furthermore, civil society responses have created awareness of what is known about the scope and operations of the organ trade with some efforts to also provide victim1 assistance (COFS 2011; COFS 2014). These efforts have contributed to improve legal and policy frameworks to prohibit the organ trade in key host countries including Pakistan, Egypt, China and the Philippines, with an aim to harmonize policies in accordance with the WHO Guiding Principles.

6Despite these efforts, HTOR still thrives in many countries and will continue to challenge opposition measures as the demand for organs continues to outpace supplies. Improved laws related to transplantation are an important element to both enhance deceased and altruistic organ donation and to counter organ-trade-related abuses. However, as we have seen in countries such as India and Egypt (countries where the authors’ affiliate organization has worked and identified many cases of HTOR), even sophisticated legal frameworks regulating transplantation have loopholes that enable violations and complicate law enforcement (Budiani-Saberi and Columb 2013).

  • 2 This paper is inspired from Budiani-Saberi and Columb (2013) and is printed with permission (© Spr (...)

7HTOR can and should be tackled from a number of perspectives including public health, economics, migration, and crime control. Prioritizing human-rights however affords a comprehensive response, with commitments to protect vulnerable persons, and to prevent and suppress the organ trade. Such an approach takes into consideration the complex causes and consequences of HTOR, seeking not only legal, but also political, economic and social solutions accordingly. Moreover, centering anti-HTOR efforts within a human-rights framework in analysis and response to this problem enables us to mobilize and employ various international legal instruments to better elicit regional and state obligations to further address the multiple human-rights violations that may occur in the trafficking process. This paper first presents a brief explanation of the importance of a human-rights-based approach to HTOR followed by an explanation of some of the ways this approach can be implemented. Finally, specific recommendations are presented to various related stakeholders.2

Importance of a human-rights approach to HTOR

8A human-rights-based approach to HTOR infers that any analysis or response to this issue should be guided by human-rights norms and principles, placing the protection of right holders at the center of all efforts/strategies to combat this phenomenon. As conveyed in the United Nations Commentary on Recommended Principles and Guidelines on Human-Rights and Human Trafficking (OHCHR 2010), this approach requires us to consider, at each and every stage, the impact or disregard that a law, policy, practice or measure may have on persons who have been or could be trafficked to better advocate their interests, rights, and freedoms. Moreover, these guidelines and principles as well as other related documents discussed below elaborate state obligations to provide assistance, protection, and other such remedies to victims of crime/human-rights abuses (Gallagher 2010).

9Hence, a human-rights-based framework would not only identify and prosecute offenders but would ensure that comprehensive measures are in place to adequately prevent, protect, and assist victims and potential victims against HTOR. Multilateral cooperation at international and regional levels has moved towards such an approach to combat human trafficking, in particular sex trafficking (Council of Europe 2005). HTOR has however remained on the margins of political action, despite the inclusion of “the removal of organs” as an exploitative purpose under article 3 (a) of the UN Trafficking Protocol. Yet, similar to victims of other forms of human trafficking and other crimes, victims of HTOR also require protection from traffickers.

10Depending on the circumstances, this may include mechanisms to protect identities and provide shelter, resettlement (especially in the case of asylum seekers and refugees), and immigration relief (i.e., visas, work permits). In the context of HTOR such mechanisms might also include free legal aid and access to judicial review, post-operative follow-up care, health education (on living with one kidney or a partial liver), and counseling/peer support. To this end, strategic partnerships should be developed and sustained with key human-rights organizations, experts and committees to monitor and evaluate the enforcement of human-rights standards and principles as they apply to HTOR. Critically, by articulating the human-rights violations that occur during the trafficking process pressure can be brought on states to enforce provisions that adequately prevent, protect, and prosecute against this crime. Thus a human-rights-based response to HTOR would start by identifying the human-rights claims and the corresponding rights obligations of states, as well as the underlying social determinants and structural issues behind this abuse. Crime control efforts would be implemented in accordance with human-rights norms and principles ensuring adequate provision for protection and prevention measures.

Implementing a rights-based approach

11In consideration of a trafficking offence, it is important to examine the interaction among different branches of law, specifically international/transnational criminal law (ICL/TCL) and international human-rights law (IHRL). Taken together the various provisions outlined in international legal instruments are mutually re-enforceable, applying legal provision to developing norms and principles upon which a rights-based framework can be built (Obokata 2006).

12Fundamental human-rights, as enshrined in the Universal Declaration of Human-Rights (OHCHR 1948), substantiated in numerous treaties and codified into national constitutions throughout the world, are non-derogable. This means that they cannot be suspended, limited or compromised, even in a situation of national emergency. State parties who have ratified particular human-rights treaties, such as the International Covenant on Civil and Political Rights (OHCHR 1966a) and the International Covenant on Economic, Social and Cultural Rights (OHCHR 1966b) are legally bound to ensure, respect and fulfill their human-rights obligations. Consequently, any state action or inaction that leads to a human-rights abuse either directly or indirectly through a failure to investigate and apply the rule of law in a situation where a person’s or persons’ rights have been compromised will be subject to international condemnation.

13Under the standard of due diligence, the legal and moral responsibility to uphold the integrity and dignity of the human person extends, via state enforcement under domestic law, to the commission of crimes (tangible to an infraction of one’s human-rights, as outlined under the relevant treaties) and other human-rights abuses committed by non-state actors. Thus, although treaty obligations do not directly apply to private individuals, state parties are obliged to pass laws that impose duties to this effect. A treaty only has effective force when codified into domestic law. Therefore if states are to honor their human-rights obligations, they must ensure that there is a legal process in place to prevent, protect, and prosecute accordingly. While trafficking, in its various forms, is a serious crime that invariably constitutes violations of internationally protected rights, states that are party to the relevant conventions of IHRL (explored in more detail below) have a duty to ensure counter-trafficking measures are enforced in concert with their human-rights obligations.

The UN Trafficking Protocol

14The UN Trafficking Protocol supplementing the United Nations Convention against Transnational Organized Crime (hereinafter the Organized Crime Convention) (UNODC 2000) is the principal international instrument establishing provisions against human trafficking, in its various forms. It was developed to promote interstate cooperation to prevent trafficking, protect trafficking victims and prosecute traffickers.

15Article 2 (b) affirms that the protection and assistance of trafficked persons “with full respect for their human-rights” is one of the three major purposes of the protocol. Subsequently, Article 6 (a) suggests (albeit weakly) a number of measures to be taken by states to assist and protect victims of trafficking in persons. States are urged to “consider” implementing measures in cooperation with civil society to provide for the physical, psychological and social recovery of victims of trafficking in persons. Article 6 (6) goes further, requiring states to “ensure” that their domestic legal systems provide measures for compensation for damage suffered. However, it is important to note that the UN Trafficking Protocol does not oblige states to guarantee a victim’s right to compensation or other such remedies but rather calls on states to adopt all necessary legislative measures, such that remedies can be pursued (UNODC 2004, (1) para. 368).

16Regarding repatriation, the protocol provides that, “such return shall be with due regard for the safety of that person and for the status of any legal proceedings related to the fact that the person is a victim of trafficking and shall preferably be voluntary” (UNODC 2000, Art. 8 (2)). Other key provisions include Article 3 (b), which states that the “consent of the victim to the intended exploitation… shall be irrelevant” where any of the listed means are employed. This is critical to redressing loopholes in domestic transplantation laws, which could allow for trafficked persons to be perceived as willing participants in commercial transplants (COFS 2014).

17The provisions of the protocol apply to natural and legal persons. Therefore hospitals, clinics or other institutions involved in illegal transplants are liable and subject to penalties, albeit contingent on state interpretation and subsequent enforcement in their domestic penal codes. Further to the provisions above, Article 14 (1) provides that nothing in the protocol shall affect the rights, obligations, and responsibilities of states and individuals under international humanitarian and human-rights law. Essentially then the protocol underlines specific measures to be undertaken by states “in accordance” with the universally accepted principles of IHRL to prevent, suppress and punish trafficking offences.

18The main strength of the UN Trafficking Protocol is that it brought states together under a common definition to combat human trafficking in all its forms. However, HTOR remains relatively misunderstood and ill-defined. Regrettably, most countries that have ratified the Trafficking Protocol have not fulfilled their obligation to address HTOR, as most domestic laws on human trafficking do not recognize trafficking for “the removal of organs” as a form of exploitation—these countries include the United Kingdom (UK), the United States (US), China, India, Pakistan, the Philippines and Colombia, among others. This has a direct impact on the ability of states to prosecute HTOR offences. Moreover, this impairs the ability of victims of HTOR to pursue legal redress. For example, in the US, potential victims of HTOR could not avail of the “T” visa as trafficking for an organ removal does not fit the criteria of a “severe form of trafficking in persons” as contained in the Victims of Trafficking and Violence Protection Act (US Department of State 2000).

19Existing provisions of international law only apply to human trafficking in general. A more nuanced understanding of this issue needs to inform future legislation. In particular, targeted measures are required to “prevent” HTOR. These might include initiatives to improve primary health-care, awareness-raising about organ failure and donation, steps to identify illegal donors, restricting insurance cover to operations performed in a patient’s home state, and logistical development to strengthen existing transplant systems, amongst others. Critically, there must be more accountable systems for organ procurement. Indicators and benchmarks should be developed to ensure that all organs used in transplant procedures are traceable to a legitimate source.

State obligations under IHRL

20The prohibition of human trafficking is firmly established under IHRL. Various human-rights instruments oblige states to prohibit trafficking of human beings and other related acts. They include the Convention on the Elimination of All Forms of Discrimination Against Women (OHCHR 1979, Art. 6), the Convention on the Rights of the Child (OHCHR 1989, Art. 35), and the Optional Protocol on Sales of Children, Child Prostitution and Child Pornography (OHCHR 2000, Art. 3). With regard to HTOR specifically, Article 3 (a) (i) (b) of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (2000) requires all state parties to ensure that the “transfer of organs of the child for profit” are covered under criminal or penal law, “whether [such] offences are committed domestically or transnationally or on an individual or organized basis.”

21Additionally, it is important to note that HTOR is also an issue of health rights (OHCHR 1966b, Art. 3). Health is not limited to a physical and mental condition; rather the right to health infers an ability to be healthy. Its realization is contingent on other rights, i.e., rights to food, housing, work, education, human dignity, bodily integrity, nondiscrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement (OHCHR 1966b). As discussed, in many countries where HTOR has been identified, such as India and Egypt, medical committees have been established to oversee transplant practices. Nevertheless, organs continue to be commercially sourced from live donors, with a priority on profit rather than the well-being of the donor (or the recipient). As this paper illustrates, socio-economic conditions should not determine an organ removal; such practice discriminates along lines of privileged and disadvantaged individuals and groups.

  • 3 Article 2 (3) of the International Covenant of Civil and Political Rights; Article 13 of the Europ (...)

22Most significantly, when human-rights principles are violated, victims have a right to legal remedies. This right is a critical aspect of the human-rights framework dictating acceptable national responses. A number of human-rights treaties contain provisions to this effect.3 Where a remedy is provided in a treaty, failure to provide such remedies becomes an additional breach of that instrument. Guideline 9 of the OHCHR principles and guidelines on human-rights and human trafficking (OHCHR 2010) confirm that states have an obligation to provide “effective and appropriate” remedies. That is, remedies must be proportionate to the gravity of the harm done. In the case of HTOR, an effective and proportionate remedy should include: access to medical care, legal aid and compensation payable for physical and mental harm as well as loss of livelihood.

23Accordingly, state and civil society organizations committed to antihuman-trafficking measures have maintained a victim focus and provided a range of support services to victims of other forms of human trafficking (counseling, legal assistance, medical care, rehabilitation, shelter). Victims of HTOR must be understood to have similar entitlements and must be provided such services and measures.

Towards the future

24Recognition of HTOR as both a human-rights and human-trafficking issue has been long overdue. A new era dawned in 2013 when reports from international organizations on HTOR squarely recognized the issue within these frameworks (OHCHR 2013; OSCE 2013). Beyond recognition, the employment of human-rights and anti-human-trafficking instruments is especially important in a context in which the international legal framework around many of the practices has been silent on these abuses. As the United Nations Special Rapporteur on Human Trafficking expressed in her thematic report to the UN General Assembly in October 2013, her review of cases reveals that the exploitation of persons who are compelled by need or force to provide organs for transplantation to nationals within their own countries or to foreigners falls squarely within the international legal definition of trafficking in persons. As noted, characterizing these cases as HTOR entails state obligations that address individual rights. The Special Rapporteur highlighted that the trafficking legal framework can also be effectively leveraged to tackle transplant tourism by extending the jurisdictional reach of national criminal laws. It is also a central obligation of the UN Trafficking Protocol to establish cross-border cooperation between law-enforcement agencies and an obligation on states to strengthen their capacity for such cooperation and to strengthen border controls to prevent and detect HTOR.

Recommendations for the international community

25Relevant United Nations agencies and entities (OHCHR, UNHRC, UNODC, WHO) should engage in inter-agency discussions towards furthering the recognition that HTOR is primarily a human-rights abuse and requires a rights-based approach to address this issue. In so doing, these parties should work in close collaboration to enable lessons learned and best practices developed to address other human-rights abuses (especially other forms of human trafficking) to assist with advancing advocacy towards fighting HTOR abuses. For example, in recent years and months, experts have refined various concepts with the UN Trafficking Protocol (i.e., protection, abuse of a position of vulnerability and other means within the UN Trafficking Protocol). As advocates of anti-HTOR efforts rely further upon human-rights instruments and the UN Trafficking Protocol, it will be important to learn from these experiences and incorporate these refinements.

Recommendations for states

26Loopholes in domestic transplant laws that allow for trafficked persons to be perceived as willing participants in commercial transplants must be redressed. Accordingly domestic trafficking laws must include HTOR. Furthermore, apart from consent procedures (usually operated by a hospital or health-ministry committee), a third party must first serve as an advocate for potential organ donors and to assess their vulnerability. This builds on the concept of a psychosocial evaluation to include a broader assessment of vulnerability with a trafficking lens.

  • 4 Up until 2008, insurance companies provided reimbursement to Israeli patients who had purchased or (...)

27States should also develop domestic legislation to prohibit it. Namely, almost every state across the globe has a domestic transplant law that prohibits the buying and selling of human organs. These laws should extend the jurisdiction to ban citizens and residents from purchasing an organ outside of its borders (Budiani-Saberi 2012). For example, patients in North America or Europe should be prohibited from buying an organ in Mexico, China, or the Philippines or elsewhere; patients in Persian Gulf countries should be prohibited from buying an organ in Egypt or Syria or elsewhere. States should also create barriers to transplant tourism by including a prohibition for insurance companies to cover the expenses of immunosuppressant drugs for patients who purchased an organ abroad.4

Recommendations for health organizations and transplant professionals

28Health organizations and transplant professionals should recognize the importance of linking HTOR to human-rights and human-trafficking instruments in order to better advocate victims’ interest, rights, and freedoms. They should also continue to recognize the limitations of the consent procedures and support the advancement of a third-party process to assess vulnerabilities via a trafficking lens.

Recommendations for social scientists, civil society and human-rights activists

29Reports on HTOR should no longer be fragmented. Rather reports should be collected, standardized and analyzed towards developing effective responses to protect and advance victims’ right and end impunities for organ traffickers. Social scientists, civil society, and human-rights activists should share findings and include relevant information to address and manage cases. COFS’ forthcoming online reporting tool to eXpose and Disrupt Organ Trafficking (XDOT) is being developed for this purpose and, in line with the UN Special Rapporteur’s recommendations, states should support such efforts to improve current understanding of the nature and extent of HTOR abuses.

30Social scientists, civil society and human-rights activists should also work with experts on HTOR to develop a standardized tool that builds on a psychosocial evaluation to also include a broader assessment of vulnerability within a trafficking framework. Again, a third party should then be established to play this role of advocacy and to conduct vulnerability assessments. Relevant human-rights groups should be considered to take on this role.

Conclusion

31HTOR is not merely an issue of supply and demand governed by rules of consent and autonomy. It is primarily a human-rights concern. One that violates fundamental human-rights, including the right to life; the right not to be submitted to slavery, servitude, forced labor or bonded labor; the right not to be submitted to torture and/or cruel, inhuman or degrading treatment or punishment; the right to the highest attainable standard of physical and mental health; the right to be free from gender-based violence; and the right to an adequate standard of living, among others. Thus, although it is important that states develop their national transplant systems and introduce measures to achieve national self-sufficiency in the supply of organs, this will only address part of a much broader issue.

  • 5 In recent recommendations to US congressional committees, the recommendation was made that HTOR sh (...)

32It is clear that states have an international obligation to prevent, protect and punish in respect to HTOR. Therefore international/transnational legal instruments (such as the UN Trafficking Protocol) that encourage states to criminalize trafficking activities and cooperate in the investigation and prosecution of serious crimes are vital to the protection of these human-rights. It is critical that states include HTOR in their domestic legislation while taking measures to ensure the primacy of human-rights are “at the center of all efforts to prevent and combat trafficking and assist and protect victims.”5

33Significantly then, it is incumbent upon states under international human-rights law (IHRL) to ensure, respect, and fulfill their obligations to enforce measures to protect the welfare of their citizens, particularly those vulnerable to exploitation such as HTOR.

Bibliographie

References

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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 thus recognizes the crime and perpetrators involved in the abuse. The Coalition for Organ-Failure Solutions (COFS) also uses the term “trafficked persons” or in this case, “person trafficked for organ removal.” Both terms are used in the human trafficking discourse and reflect COFS’ intention to gain legal recognition that these persons have had rights abused by being trafficked for organ removal.

2 This paper is inspired from Budiani-Saberi and Columb (2013) and is printed with permission (© Springer Science + Business Media Dordrecht 2013).

3 Article 2 (3) of the International Covenant of Civil and Political Rights; Article 13 of the European Convention on Human-Rights; Article 7 (1) (a) of the African Charter of Human and Peoples’ Rights; Article 6 of the International Convention on the Elimination of all Forms of Racial Discrimination; Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Article 39 of the Convention on the Rights of the Child; Article 83 of the International Convention of the Protection of Rights of All Migrant Workers and Members of their Families.

4 Up until 2008, insurance companies provided reimbursement to Israeli patients who had purchased organs abroad. The Organ Transplant Act (2008) is available at 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 Lavee, over the last few years, it is estimated that about 200 Israelis have traveled to China for kidney transplants and about 15 have sought heart transplants. Several dozen others have bought kidney transplants in the Philippines.

5 In recent recommendations to US congressional committees, the recommendation was made that HTOR should be included in the US 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 tlhrc.house.gov/docs/transcripts/2012_1_23_Organ_Trafficking_Briefing/Budiani_testimony.pdf

Auteurs

Medical anthropologist and the executive director and founder of the Coalition for Organ-Failure Solutions. She has conducted extensive research on trafficking in persons for the removal of organs (TPRO), beginning in 1999 as a part of her study on refugee health. She has provided consultation on TPRO to the Office of the High Commissioner for Human-Rights (OHCHR), the World Health Organization (WHO), the United Nations Office on Drugs and Crime (UNODC), and has worked in alliance with various medical and civil society organizations to combat the organ trade. Dr. Budiani-Saberi has also worked more broadly on health and human-rights in various parts of the Middle East and Asia.

Lecturer in law at the University of Liverpool. His primary research area is human trafficking and exploitation. In particular, he is interested in the organ trade and the legal expression of exploitation in international law. His current research examines how the organ trade fits into the anti-trafficking framework at national (UK), international and regional (EU) levels; its link to organized crime and the wider political economy. Columb is committed to advancing academic scholarship in this area. His research is empirically driven and takes an interdisciplinary perspective.

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