Re-conceptualizing the organ trade: separating “trafficking” from “trade” and the implications for law and policy
Introduction
The trade in human organs is considered a major international concern. In 2007, the World Health Organization (WHO) estimated that approximately 6000 kidney transplants are performed illegally each year. More recently, the Council of Europe declared that organ trade constitutes a “major threat to public health” and that it is growing worldwide due to the “greed of unscrupulous traffickers”
The organ trade consists of different practices, nominally defined in the literature as “organ trafficking,” “trafficking in persons for organ removal,” “organ sales,” “transplant commercialism,” and “transplant tourism.” Although there can be some overlap between these practices, the official and popular discourse predominantly applies the term, “organ trafficking” without distinction as to the variable aspects involved. As a result, the organ trade as a whole is presented as a serious organized crime that can only be tackled by a punitive response. This approach however, as we will explain below, is potentially counterproductive. Before discussing the possible implications and offering suggestions to improve the response, we first describe the origin of the organ trafficking discourse and address the conflation of organ trafficking with trade.
The origin of the organ trafficking discourse
“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the removal of organs.”
When the phrase, “the removal of organs,” was introduced, there was little empirical data or case law demonstrating that criminal networks were involved in trafficking persons for their organs. Thus, the concept was introduced despite it not being well studied, discussed, or defined. Nevertheless, the definition has been reaffirmed by other legal instruments and is now prohibited worldwide.
The definition in the Trafficking Protocol only extends to “trafficking in persons.” It does not cover the sale or purchase of organs.
Notably, this definition is the only legally accepted definition of “trafficking,” or more specifically, “trafficking in persons.” Although in the popular discourse trafficking is occasionally associated with other forbidden activities such as “drug trafficking” and “arms trafficking,” these activities are connected to an illicit trade. Trafficking on the other hand is legally associated with exploiting persons for various purposes through different means. Hence, when one speaks about “organ trafficking,” the distinction between what is considered “trafficking in persons for the purpose of organ removal” and “trafficking of organs,” independent of the body, is not clear. Below we discuss the implications of conflating organ trafficking with trade.
Conflating organ trafficking with trade
Attempts after the Trafficking Protocol to establish universal principles in organ transplantation have added confusion to the conceptualization of organ trade. The explanatory report to the 2006 Additional Protocol on Transplantation of Organs and Tissues that supplements the Council of Europe Convention on Human Rights and Biomedicine for example declares that “Organ trafficking […] are important examples of such illegal trading and of direct financial gain.”
“Organ trafficking is the recruitment, transport, transfer, harboring or receipt of living or deceased persons or their organs by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability, or of the giving to, or the receiving by, a third party of payments or benefits to achieve the transfer of control over the potential donor, for the purpose of exploitation by the removal of organs for transplantation.”
The most recent convention, the 2014 Council of Europe Convention against Trafficking in Human Organs (henceforth, the Council of Europe Convention), calls for a similarly broad prohibition of commercial dealings in organs. It defines “trafficking in organs” as the “illicit removal of human organs.” Accordingly, even sales that occur with the consent of donors are considered to be “trafficking,” regardless of the circumstances involved.
The conflation of trafficking with trade is premised on the assumption that organ sales only involve organs that are harvested from trafficked persons. Therefore, it would be immoral to permit the commercial exchange of organs. The reasoning is that organ donation should occur altruistically as this would rule out financial motivation for organ donation, hence, protecting vulnerable individuals from exploitation.
The issue with this line of reasoning however is that it lacks an empirical and normative foundation. Arguments against an all-encompassing prohibition of organ sales have been presented by scholars worldwide. Hence, we will not reiterate these arguments here. Instead, we address the emerging body of empirical research which demonstrates that trade does not always constitute trafficking.
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