COUNCIL CONSEIL United Nations OF EUROPE DE L’EUROPE Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal of organs Joint Council of Europe/ United Nations Study 100 95 75 25 5 0 Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal of organs Joint Council of Europe/United Nations study Prepared by Arthur Caplan, PhD, Chair of the Department of Medical Ethics and Director of the Center for Bioethics, University of Pennsylvania (United States of America) Beatriz Domínguez-Gil, MD, PhD, Medical Adviser, National Transplant Organisation (Spain) Rafael Matesanz, MD, PhDm, Director of the National Transplant Organisation (Spain), President of the Iberoamerican Network/Council of Donation and Transplantation and former Chair of the European Committee on Organ Transplantation of the Council of Europe Carmen Prior, Mag. Iur., Public Prosecutor (Austria) Directorate General of Human Rights and Legal Affairs Council of Europe 2009 Acknowledgements The preparation of this Joint Study Department of Medical Ethics and Representatives of the secretariats of was carried out in the framework of Director of the Center for Bioethics at the World Health Organization and co-operation between the Council of the University of Pennsylvania in Phil- the United Nations Office on Drugs Europe and United Nations. adelphia (United States of America), and Crime, as well as the European The commitment and leadership of and Rafael Matesanz and Beatriz Directorate for the Quality of Medi- Maud de Boer-Buquicchio, Deputy Domínguez-Gil of the National Trans- cines and Healthcare and the Health Secretary General of the Council of plant Organisation (Spain). Mr Mate- and Bioethics Department of the Europe, and Rachel N. Mayanja, Assist- sanz and Ms Domínguez-Gil are both Council of Europe, generously shared ant Secretary-General of the United representatives on the European Com- their experience, research, reports, Nations and Special Adviser on mittee on Organ Transplantation data and other material. Gender Issues and Advancement of (CD-P-TO). Many thanks also to Francis L. Del- Women, made the preparation of this The authors were assisted by the Sec- monico, MD, Director of Medical Study possible. retariat of the Council of Europe Con- Affairs at the Transplantation Society The Study was prepared jointly by the vention on Action against Trafficking for reading the Study and offering val- legal expert appointed by the Council in Human Beings and the Office of the uable advice. of Europe: Carmen Prior, Public Prose- Special Adviser on Gender Issues and cutor (Austria), and the scientific Advancement of Women at the United experts appointed by the United Nations Department of Economic and Nations: Arthur Caplan, Chair of the Social Affairs. The opinions expressed in this work are the responsibility of the authors and do not necessarily reflect the official policy of the Council of Europe. The views expressed in this study are those of the consultants and do not necessarily represent the views of the United Nations. Secretariat of the Council of Europe Convention on Action against Trafficking in Human Beings Directorate General of Human Rights Council of Europe F-67075 Strasbourg Cedex http://www.coe.int/justice/ © 2009 Council of Europe/United Nations Printed in France Contents Foreword. 5 Executive summary . 7 I. Introduction . 9 II. Overview of organ donation for transplantation purposes . .15 A. Transplantation of organs and tissues Transplantation: a historical The dire consequences of organ The process of deceased donation: perspective . 17 and tissue shortage . .21 organisational and technical Solving the organ and tissue initiatives for dealing with organ Outcomes associated with organ shortage. .24 shortage . .24 transplantation . 18 Non-heart beating donation Organ shortage: a universal (donation after cardiac death). .27 problem . 19 Living donation. .27 B. Bioethics – the ethical framework for organ and tissue procurement The existing bioethical framework Organ markets. .31 Distributing organs: what is just for obtaining organs and tissues . 30 Presumed consent . .32 and fair? . .32 Increasing the supply . 31 C. Existing international standards World Health Organization and European Union . .42 World Medical Association . .46 World Health Assembly. 34 The Iberoamerican Network/Council Council of Europe . 35 of Donation and Transplantation (RCIDT) . .45 D. National legislation on organ transplantation 3 E. Organisational measures Council of Europe . 49 Iberoamerican Network/Council of European Union. 50 Donation and Transplantation (RCIDT) . .51 Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal of organs III. Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of organ removal . .53 A. Current situation and consequences Trafficking in OTC and trafficking Consequences of trafficking in in human beings for the purpose OTC and trafficking in human of organ removal – known facts . 57 beings for the purpose of organ Myths concerning trafficking in removal . .61 OTC and trafficking in human beings for the purpose of organ removal . 60 B. Trafficking in OTC: international standards and initiatives United Nations General Assembly . 65 The Iberoamerican Network/Council The Transplantation Society and World Health Organization . 65 of Donation and Transplantation the International Society of (RCIDT) . .73 Nephrology . .74 Council of Europe . 68 Asian Task Force on Organ European Union. 70 Trafficking . .75 C. Trafficking in human beings: international standards and their application to organ removal Binding international legal The application of international instruments on action against standards to organ removal . .77 trafficking in human beings . 76 IV. Conclusions and recommendations . .91 “Trafficking in organs, tissues and Organ donation and organ Trafficking in organs, tissues and cells” and “Trafficking in human transplantation: promotion of cells: need for an internationally beings for the purpose of the organ donation, organisational and agreed definition . .96 removal of organs”: two different technical measures to increase Trafficking in human beings for phenomena and two different organ availability and existence of the purpose of removal of organs: crimes . 93 organisational and technical the effectiveness of existing The prohibition of making capacity for transplantation of international standards and no financial gains with the human organs. .94 need for further international legal body or its parts: the paramount “Trafficking in organs, tissues and instruments . .97 principle . 93 cells” and “Trafficking in human beings for the purpose of the removal of organs”: need to collect reliable data . .95 4 Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal of organs Foreword by the Deputy Secretary General of the Council of Europe and the Assistant Secretary-General and Special Adviser on Gender Issues of the United Nations Trafficking in human beings is a real its parts as such to give rise to finan- beings for the purpose of organ and growing problem all over the cial gain. Its Additional Protocol con- removal in particular, as well as with world. Human beings are bought and cerning Transplantation of Organs and regard to live donators implicated in sold as a commodity. The criminals Tissues of Human Origin prohibits traf- trafficking in organs, tissues and cells. responsible for these massive viola- ficking in organs and tissues. Together The Deputy Secretary General of the tions of human rights and the rule of with the Council of Europe activities to Council of Europe and the Assistant law are buying and selling human increase the availability of organs, Secretary-General of the United beings for different reasons, but the tissues and cells for transplantation Nations and Special Adviser on trafficking for the purpose of the purposes, this multi-sectoral approach Gender Issues and Advancement of removal of organs is clearly one of its placed the Council of Europe in a very Women decided to join their efforts most abhorrent forms. In spite of that, strong position to contribute to com- and agreed that the study should be this form of trafficking has been rela- bating trafficking in organs, tissues prepared jointly in the framework of tively unknown and insufficiently and cells and trafficking in human co-operation. As well as considering researched. beings for the purpose of the removal both the medical and legal aspects, it The Council of Europe Convention on of organs. was agreed also to look at ethical Action against Trafficking in Human The Assistant Secretary-General of the problems and organisational and Beings is an effective new instrument United Nations and Special Adviser on other measures, with a view to provid- to fight human trafficking in all its Gender Issues and Advancement of ing an overview of the current legal forms, including for the purpose of the Women was concerned that organ and factual situation, including from a removal of organs. Following its entry trafficking and trafficking in human gender aspect, examining existing into force in 2008 the Deputy Secre- beings for the purpose of organ measures to combat both forms of tary General of the Council of Europe removal, long considered to be myths, crime and exploring further avenues took the initiative to explore the Con- seem