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Improving the Effectiveness of the Organ Trade Prohibition in Europe

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Improving the Effectiveness of the Organ Trade Prohibition in Europe IMPROVING THE EFFECTIVENESS OF THE ORGAN TRADE PROHIBITION IN EUROPE Recommendations Authors: V. Beširević, N. Codreanu, E. Demény, G. T. Florea, J. Sándor. Chisinau, 2012 www.EULOD.eu IMPROVING THE EFFECTIVENESS OF THE | 1 ORGAN TRADE 1 PROHIBITION IN EUROPE Recommendations Chișinău, 2012 IMPROVING THE EFFECTIVENESS OF THE ORGAN TRADE PROHIBITION IN EUROPE The research leading to these results has received funding from the European Commission Seventh Framework Programme (FP7/2010-2012) under Grant Agreement 242177 Living Donation in Europe (EULOD project)". Coordinator and editor: Natalia Codreanu1 Authors: V. Beširević2, N.Codreanu1, E.Demény2, G.T.Florea2, J.Sándor2. Renal Foundation (RF), Chişinău, Moldova1, Centre for Ethics and Law in Biomedicine, Central European University (CEU), Budapest, Hungary2. Contributions: The researchers were helped by members of the ELPAT Working Group on Organ Tourism and Paid Donation during two EU-funded ELPAT working group meetings in Sofia (2010) and Berlin (2011). ELPAT is the European platform on ethical, legal and psychosocial aspects of organ transplantation. It is an official committee of the European Society for Organ Transplantation (ESOT)." www.EULOD.eu www.EULOD.eu CONTENTS | 3 PREFACE 4 ROLE OF INTERNATIONAL ORGANIZATIONS IN LAW ENFORCEMENT 6 3 The Prohibition of Organ Trade is Insufficient 6 The Global Illicit Flow of Organs 7 The Prohibition of Transplant Commercialism Is Not Effective 8 What Works and the Way Forward for the Declaration of Istanbul 9 THE ROLE OF LAW ENFORCEMENT 12 THE ROLE OF HEALTH CARE PROFESSIONALS 17 THE ROLE OF PREVENTION: EDUCATING HEALTH CARE PROFESSIONALS 22 THE ROLE OF ETHICS COMMITTEES: IMPROVING THEIR WORK IN MAKING DECISIONS ON LIVING ORGAN DONATION 24 EDUCATION AND TRAINING FOR THE MEMBERS OF THE COMMITTEES AND OTHER HEALTHCARE PROFESSIONALS INVOLVED IN LIVING ORGAN DONATIONS 26 RECOMMENDATIONS ON INCENTIVES 28 RECOMMENDATIONS ON IDENTIFICATION, PROTECTION AND ASSISTANCE OF (POTENTIAL) VICTIMS OF ORGAN TRAFFICKING 31 IMPROVING THE EFFECTIVENESS OF THE ORGAN TRADE PROHIBITION IN EUROPE PREFACE Transplantation of organs, tissues and cells is one of the leading forms of contemporary medical practice which restores normal life to thousands of patients worldwide. Satisfactory results of organ transplantation, more effective immunosuppression and improved care - all made this treatment a realistic option for a greater number of people. However the success of organ transplantation has led to a variety of challenges ranging from the organizational to the ethical. According to the Global Observatory on Donation and Transplantation, in 2010, 106 879 solid organs have been transplanted worldwide, which meet 10% of the global need1. Thus, each year approximately 13 961 patients die while waiting for a graft2. International organizations as well as responsible government agencies are working to reduce the significant gap between demand and supply by increasing the number of donors and distributing organs in the most medically efficient terms and socially most fair. The principle of the gift was the pivot on which organ transplantation was based on since the first transplantations from living relatives, such as siblings or parents. With the increasing demand for organs unexpected categories of donors have appeared, often raising embarrassing ethical issues. Although the concept of "altruistic donation" of organs from genetically unrelated individuals such as spouses, friends, co-workers is becoming acceptable, the questions of motivation or coercion emerged. Some ethicists are warning about a rapid decline in the traditional medicine humanistic values. In their place are arising new relationships between patient care and financial incentives, including those seeking help and those willing to pay for it. In the last decade the increasing public attention was attracted by a new reality that involves the actual buying and selling of organs, which was defined as organ commercialism and organ trafficking. In the EULOD project we intend to analyse broader ethical, social and legal aspects of donation from living donors, and the effectiveness of legislative provisions in the field of organ trafficking and transplant tourism. Over the two years of the project numerous cases of human trafficking with the purpose of 1 Source: www.transplant-observatory.org 2Newsletter Transplant, Vol.16, Nr.1, September, 2011. www.EULOD.eu organ harvesting, organ commercialism, and transplant tourism were identified and analysed3. A critical approach to current legislation, as well as legal analysis of cases that have reached court, but also to those presented in the media allowed us to identify a number of gaps in the legislation, structural and organizational problems that make transplantation systems in some countries | 5 more vulnerable to organ trafficking. Becomes obvious that efforts to prevent and combat trafficking in organs should be directed equally to both the so-called “donor” countries as well as to the countries from where are organ recipients. 5 This brochure presents a number of recommendations that could help to improve the effectiveness of existing legislation and to the strengthening of state bodies that are involved in preventing and combating organ trafficking, as well as in protecting and assisting victims of organ trafficking. 3 The report can be found on the EULOD project website www.EULOD.eu IMPROVING THE EFFECTIVENESS OF THE ORGAN TRADE PROHIBITION IN EUROPE ROLE OF INTERNATIONAL ORGANIZATIONS IN LAW ENFORCEMENT THE PROHIBITION OF ORGAN TRADE IS INSUFFICIENT The World Health Organization (WHO) first declared the prohibition of organ trade in 1987, affirming that such trade is inconsistent with the most basic human values and contravenes the Universal Declaration of Human Rights. The WHO Guiding Principles state the reason why organ sales are prohibited. The Commentary to Principle 5 states: “Payment for [...] organs is likely to take unfair advantage of the poorest and most vulnerable groups, undermines altruistic donation, and leads to profiteering and human trafficking. Such payment conveys the idea that some persons lack dignity, that they are mere objects to be used by others.”4 The organ trade prohibition must be seen in context of when it was formed: at a time when there was no shortage of organs and organ trade and trafficking offences barely occurred. Back then, the prohibition was successful in its aim to prevent trade and trafficking, simply because the root cause of the crime (organ shortage) was not as rampant as it is now. The prohibition worked, not only as a preventative mechanism, but also as a universal norm that organs were not to be used commercially. Almost every single country endorses the non- commerciality principle in organ transplantation and has implemented it into their national laws. The principle of non-commercialization of the human organs has been re-affirmed by the Council of Europe and by the European Union, as well. Since the nineties however, transplantation has become a victim of its own success, with demand for organs far outpacing their supply. Organs have become more valuable and profitable to sell. Globalization has created a possibility to contact health professionals, organ brokers in the other part of the world, and to travel to distant destinations while medical and patient mobility have significantly increased. This leads to development of black markets that involve various actors who increasingly make use of organs’ high profitability. 4World Health Organization Guiding Principles on Human Cell, Tissue and Organ Transplantation (last revised on May 26, 2008) www.who.int; www.EULOD.eu THE GLOBAL ILLICIT FLOW OF ORGANS Together with drugs, humans, arms, diamonds, gold and oil, organs are becoming the subject of an illegal multibillion dollar industry. A recent report by Global Financial Integrity estimates that the illicit organ trade generates illegal profits between $600 million and $1.2 billion per year. It ranks the trade in | 7 human organs on number ten of the illegal activities studied in terms of illegal profits made.5 The report further states that profits from these illicit markets are making their way to transnational crime syndicates through vast 7 international trade networks. These networks take advantage of globalization and new communication and transportation technologies. Key to the growth and success of global criminal networks is their flexibility and versatility, which have expanded their activities to a wide diversity of legal and illegal fields.6 Many of these networks are successfully integrated in legal structures and institutions.7 Indeed, an increasing number of organ trafficking rings are globally active that involve actors who operate in different countries from where recipients and donors are recruited. Organ trafficking accounts come from all over the world, including Egypt, India, South Africa, the Philippines, Israel, Colombia, the Balkan Region, Turkey and Eastern Europe.8 A growing number of countries, including 5Haken J. Transnational Crime in the Developing World. Washington: Global Financial Integrity 2011. 6Castells M. The global criminal economy. End of Millennium. Oxford: Blackwell; 1998; 7Naylor R. Wages of Crime. Black Markets, Illegal Finance and the Underworld Economy. Ithaca: Cornell University Press; 2002; 8Budiani-Saberi D, Mostafa A. Care for commercial living donors: the experience of an NGO’s outreach in Egypt. Transplant International 2011;24(4):317-23; Goyal
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