UNITED NATIONS HUMAN RIGHTS COUNCIL. 1 P a g e BACKGROUND GUIDE

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1 UNITED NATIONS HUMAN RIGHTS COUNCIL 1 P a g e BACKGROUND GUIDE

2 Illegal organ trade through black market channels has been a prevalent problem in countries all over the world. People plagued with systematic disenfranchisement and poverty other structural disadvantages have been abducted, at times have been operated on and have unknowingly or unwillingly lost their organs. Countries do possess legal channels for procurement of organs that can be changed between donor and recipient but due to a huge demand and a lack of adequate supply, in some areas, the illegal channels have become the norm. The united nations adopted a resolution in September of 2017 titled strengthening and promoting effective measures and international cooperation on organ donation and transplantation to prevent and combat trafficking in persons for the purpose of organ removal and trafficking in human organs (document A/71/L.80), which was introduced by the representative of Spain and adopted without a vote. By its terms, the Assembly urged Member States to prevent and combat such trafficking, in line with their obligations under international and national law, and to uphold accountability through measures in that regard. It urged them to strengthen legislative frameworks, adopt laws necessary to guarantee that the donation of organs was guided by clinical criteria and ethical norms and ensure equitable access to human organ transplantation based on non-discrimination, and asked the World Health Organization (WHO) to develop international guidelines on the health, criminal and human rights aspects of those crimes. 2 P a g e

3 AGENDA Organ trade is the trade of human organs, tissues or other body parts for the purpose of transplantation. There is a global need or demand for healthy body parts for transplantation, far exceeding the numbers available. As of 2011, about 90,000 people were reported to be waiting for a new organ in the United States. On average, an individual will wait three and a half years for an organ to become available for transplant. There is a worldwide shortage of organs available for transplantation, yet commercial trade in human organs was at one point illegal in all countries except Iran. The legal status of organ trade, however, is changing around the world. For example, in 2013, both Australia and Singapore legalized financial compensation for living organ donors. Trade in human organs is illegal in many jurisdictions in a number of ways and for various reasons, though organ trafficking is widespread, as is transplant tourism. The data on the extent of the black market is difficult to obtain. The question of whether to legalize and regulate the organ trade to combat illegal trafficking and organ shortage is hotly debated. Some countries have legalized the practice such as Iran where organ trade is permitted between people living in Iran as citizens and cannot be switched between people of different nationalities, i.e., an Iranian cannot trade organs with a refugee living in Iran. The transaction has to be consensual between both the donor and the receiver. The problem is, demand for replacement flesh grossly outstrips supply. In the UK and like-minded countries, it's illegal to sell body parts -- they can be taken only from those who filled in a donor card before they died or who, alive, are willing to give up an organ out of sheer benevolence. This means there isn't 3 P a g e

4 enough tissue to go around. So, as with any outlawed or heavily regulated resource, a bustling underground trade has formed. Organs are bought and sold at exorbitant prices and from unknown sources. The health of the individual selling their organs is also undetermined. According to the World Health Organization (WHO), illegal organ trade occurs when organs are removed from the body for the purpose of commercial transactions. The WHO has stated that 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. Despite ordinances against organ sales, it was estimated that in 2005, 5% of all organ recipients had engaged in commercial organ transplants. Research indicates that illegal organ trade is on the rise, with a recent report by Global Financial Integrity estimating that the illegal organ trade generates profits between $600 million and $1.2 billion per year, with a span over many countries. The very first successful organ transplant was a kidney transplant, which was performed in Boston, Massachusetts in Since then, organ transplantation has developed into a well-established clinical therapy, which saves lives and improves the quality of life for thousands of patients every year. Kidney, liver, heart, and lung transplantations are now used for those patients who might be suffering end-stage organ failures. There are many different types of transplants; bones are used to repair damage due to trauma or cancer, and pancreas transplantation helps diabetic patients. According to the Global Observatory on Donation and Transplantation, almost 100,000 patients worldwide receive a solid organ transplant each year. The spread of medical transplant technology around the world has saved many lives but has also created a shortage of organs for transplant. Meanwhile, the success of organ transplantation has led to a sharp increase in the number of patients on waiting lists to receive new organs. In other words, the demand for organs has continued to rise but the supply of available organs has not. The shortage is due to the fact that the vast majority of organs are taken from people who are fatally injured, such as motorcycle or car accident victims. The number of sick people needing transplants far outstrips the number of organ donors involved in accidents every year. As a result, it can take years for a patient to get their opportunity for a transplant and most countries do not 4 P a g e

5 have enough organs to meet the demand. Many people who would be able to live if they could have an organ transplant will die because of the shortage of organ donors. Tens of thousands of people die every year while waiting for an organ transplant. Most organs for transplant come from brain dead people who have sustained some kind of fatal injury. Organs are harvested, or removed, from brain dead people who cannot survive without being attached to a machine so that other people can be given the gift of life. Organ harvesting must be done while the person is still technically alive (breathing and with a heartbeat) because organs begin to deteriorate immediately upon death. However, it is only legal to use organs from a brain dead person if there is consent, or agreement, from the person. Countries such as Austria and Norway have a system of donor registry called presumed consent. Presumed consent is an organ donation policy that assumes every citizen is a willing donor unless they opt-out formally by putting it in writing. The main advantage of a system of presumed consent is the very high rate of organ donors-nearly everyone is considered one unless they declare in writing that they do not want their organs harvested in the event of an accident. Singapore was the first country in the world to develop a policy of presumed consent and many European nations followed their example. As a result, certain countries, such as Belgium and Spain, are able to come much closer to meeting their national demand for organ donation. Other countries have a system of organ donor identification called opt-in. In this system, an individual must give explicit permission to have their organs harvested by joining an organ donation registry that identifies them as a donor in the event of an accident. In the United States, for example, citizens must legally declare their status as an organ donor, usually by indicating so on an official form of ID such as a driver s license. Sometimes, if the person was not a participant in an organ donor registry, a family member such as a husband, wife, parent or child can make the decision to donate their organs upon brain death. It is generally agreed upon that the opt-in system produces less donors and therefore contributes to the organ shortage. Other countries have neither a system of presumed consent nor an opt-in system which results in the wasting of almost all available organs in cases of fatal accidents. The selling of human organs is forbidden as unethical in most countries in the world. However, donation of organs is considered a personal choice and a gift from one person to another. Although most organ donations are from brain dead people, healthy living people can also donate certain organs. 5 P a g e

6 The human liver has the power to regenerate itself and therefore a half of a liver can be taken from a willing donor and be transplanted to a patient in need. In most countries, live organ donation is completely legal if no one is paid for their organs. However, thousands of people are waiting on donor transplant lists and many of them know they are going to die if they don t receive a transplant. In their desperation for a donor, people that have money to pay are seeking out living donors who need money so badly that they are actually willing to sell their internal organs to a stranger. In 2011, Scott Carney coined the term "Red Market" to describe a broad category of economic transactions related to the human body. He argues that advances in science have served to increase the demand for human body parts. He writes that this increased demand has enabled a vast "Red Market," encompassing a wide variety of transactions, from organ sale to organ thievery, 'bone thievery,' 'blood farming,' Sometimes the market in body parts is exploitative: desperate people are paid tiny sums for huge donations. Other times it is ghoulish: pieces are stolen from the recently dead. And every so often, the resource grab is lethal - people are simply killed for their organs. The United Network for Organ Sharing defines transplant tourism as "the purchase of a transplant organ abroad that includes access to an organ while bypassing laws, rules, or processes of any or all countries involved." The term "transplant tourism" describes the commercialism that drives illegal organ trade, but not all medical tourism for organs is illegal. For example, in some cases, both the donor and the recipient of the organ travel to a country with adequate facilities to perform a legal surgery. In other cases, a recipient travels to receive the organ of a relative living abroad. Transplant tourism raises concerns because it involves the transfer of healthy organs in one direction, depleting the regions where organs are bought. This transfer typically occurs in trends: from South to North, from developing to developed nations, from females to males, and from people of color to whites trends that experts say "[have] exacerbated old...divisions." 6 P a g e

7 The kidney is the most sought-after organ in transplant tourism, with prices for the organ ranging from as little as $1300 to as much as $150,000. In fact, reports estimate that 75% of all illegal organ trading involves kidneys. The liver trade is also prominent in transplant tourism, with prices ranging from $4000 to $157,000. Though livers are regenerative, making liver donations non-fatal, they are much less common due to an excruciating post-operative recovery period that deters donors. Other high-priced bodily organs commonly sold in the organ trade include corneas ($24,400) and unfertilized eggs ($12,400), while lower-priced bodily commodities include blood ($25 $337), skin ($10 per square inch), and bones/ligaments ($5,465). While there is a high demand, and correspondingly a very high price, for vital organs such as hearts and lungs, transplant tourism and organ trafficking of these parts is very rare due to the sophisticated nature of the transplant surgery and the state-of-theart facilities required for such transplants. Putting the responsibility of combating the crime of organ trafficking, and of human trafficking in general, in the hands of individual states ignores the transnational nature of trafficking. Therefore, it is important to consider the establishment of international legal initiatives to ensure cooperation between State parties and the international criminalization of organ trafficking. To date, there are no legally binding international instruments devoted to organ trafficking alone. There are several international documents, however, which deal with medicine, health sector and/or human trafficking in general and incorporate the crime of organ trafficking therein. The most important binding international legal document considering human trafficking with the purpose of the removal of organs is the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. The Protocol is directed at human trafficking in general but includes trafficking with the purpose of the removal of organs within the scope of its definition. The Protocol specifies that ratification requires the criminalization, prohibition and punishment of the act of trafficking and adopting legislation to ensure this, providing assistance and protection for and aid in repatriation of victims of trafficking, and facilitating the establishment of prevention programs for trafficking, the establishment of effective information exchange and training for law enforcement professionals, and measures concerning border control and the security and validity of travel documentation. The Protocol has been signed by 117 and ratified by 158 UN Member States. 7 P a g e

8 Falun Gong is a modern qigong discipline combining slow-moving exercises and meditation with a moral philosophy centered on the tenets of truthfulness, compassion and tolerance. It was founded by Li Hongzhi, who introduced it to the public in May 1992 in Changchun, Jilin. Following a period of rapid growth in the 1990s, the Communist Party launched a campaign to "eradicate" Falun Gong on 20 July The persecution of Falun Gong refers to the campaign initiated in 1999 by the Chinese Communist Party to eliminate the spiritual practice of Falun Gong in China. It is characterized by a multifaceted propaganda campaign, a program of enforced ideological conversion and re-education and a variety of extralegal coercive measures such as reportedly arbitrary arrests, forced labor and physical torture, sometimes resulting in death. Followers describe the practice as a form of meditation for self-improvement, rather than a religion, yet they cling to Falun Gong's spiritual teachings about the universe, meditate in groups, and read scriptures written by their spiritual leader. In China in 2006, a hospital run by the state communist party was exposed for trafficking the organs of prisoners of conscience, i.e. forced organ harvesting. The Falun gong practitioners are an example of the prisoners of conscience held captive by the Chinese government. 10,000 transplantable organs are sold out of China each year, a market worth $1 billion, despite the fact that few donors are on official lists. This has become the subject of a documentary: Human Harvest: China s Organ Trafficking. International investigators like David Matas and David Kilgour cite evidence that tens of thousands have been killed in China by Chinese officials to support illegal organ trafficking. The Chinese communist party has denied all allegations of transplant operations, claiming that neither transplant centers nor or an organ harvesting program exists. 8 P a g e

9 Legalization of human organ trading has been opposed by a variety of human rights groups. One such group is Organs Watch, which was established by Nancy Scheper-Hughes a medical anthropologist who was instrumental in exposing illegal international organ-selling rings. Scheper-Hughes is famous for her investigations that lead to several arrests due to third-world people being forced or fooled into organ donations. Like the World Health Organization, Organs Watch seeks to protect and benefit the poverty-stricken individuals who participate in the illegal organ trade out of necessity. However, by 2010, Scheper-Hughes and Organ Watch supported legal compensation for organ donations. Trafficking in persons for the purpose of organ removal was on the agenda of the Working Group on Trafficking in Persons established by the Conference of Parties to the Organized Crime Convention at its fourth session, from 10 to 12 October The Working Group recommended that States make better use of the Convention and Trafficking in Persons Protocol in combating trafficking in persons for the purpose of organ removal. The Working Group recommended that States parties to the Convention should encourage relevant United Nations entities, including UNODC, to gather evidence-based data on trafficking in persons for the purpose of organ removal, including root causes, trends and modus operandi, with the aim of facilitating better understanding and awareness of the phenomenon while recognizing the difference between trafficking in organs, tissues and cells. The Working Group also requested UNODC to develop a training module against trafficking in persons for the purpose of organ removal, and provide technical assistance, especially in regard to investigation, exchange of information and international legal cooperation. 9 P a g e

10 Following international pressure, China officially banned the procurement of organs from executed prisoners and announced that it would move to a voluntary donation-based system in But it s widely understood that the Chinese government continues to carry out mass killings of innocent people in order to obtain their organs for transplants. A paper published in the American Journal of Transplantation highlights an implausible discrepancy between officially reported transplants and a steep expansion of China s transplant infrastructure. Another damning report released in June by former Canadian politician David Kilgour, human rights lawyer David Matas and journalist Ethan Gutmann shows that organ transplants are carried out in China 10 times more than official government figures reveal. The (Communist Party) says the total number of legal transplants is about 10,000 per year. But we can easily surpass the official Chinese figure just by looking at the two or three biggest hospitals, Mr Matas said in a statement. The report estimates that 60,000 to 100,000 organs are transplanted each year in Chinese hospitals. Kosovo is known for human trafficking and organ harvesting. In 1999 after the Kosovo war, new evidence claims that the Kosovo Liberation Army (KLA) abducted 400 Kosovo residents, mostly Serbs, and illegally harvested their organs before killed them. These allegations were sourced from Carla del Ponte, a former chief prosecutor at the International Criminal Tribunal of the Former Yugoslavia. However Carla del Ponte withheld information about this war crime for many years due to the lack of evidence. Being called the holy land for the birth place of Jesus, Israel has seen countless carnage, war and poverty. It is also a place where organ trafficking takes place often. Up till a few months ago Israel did not have any proper laws to prevent organ trafficking. There are strict laws to prevent human trafficking in Israel however the law on organ trafficking is not solid enough and thus the trafficking of organs continues. The Israeli organ transplanting ring, have been persuading desperate organ sellers from Israel to have their organs removed in Ukraine where the laws are less strict. In some cases these criminals are stealing organs and leaving their donors with nothing, or they are paying very little ($2,000) for 10 P a g e

11 a kidney while they sell them to buyers for at least times the amount. The organ trafficking ring has been caught thanks to a gun battle by unpaid organ donors who were promised money but ended up in a scam. It was reported that Dr. Zaki Shapira, a chef of transplantation at the Beilinson Medical Center who s also the head of a highly profitable organ transplanting ring. Dr. Zaki Shapira was arrested. Organ trafficking rings have been running in India for the past 12 years. Among these, was the famous 2004 scandal. It was reported that the Transplant Authorization Committee in charge of preventing organ selling was working with brokers in the sale of kidneys. They believed that they could save lives and it was better to work with the brokers rather than oppose them. Many brokers, hospitals and doctors have been caught in India the latest being Amit Kumar. However the selling of kidneys is still on the rise in India despite all the scandals and rings exposed. Many still open shops in the illicit hunt for kidneys. The U.S. Department of Health & Human Services data of Organ Procurement and Transplantation Network reports 121,333 currently awaiting organ transplant of which 100,402 are waiting for a kidney. Only 30,970 transplants actually took place (legally) in According to the World Health Organization, America is one of many organ-importing countries and by the use of the web, patients can get transplant packages from $70 to over $160, USA Today conducted an investigative report and found that illegal body harvesting is very lucrative in the U.S. due to the high demand of body parts. The investigation revealed that from (19 years), over 16,800 families had pursued lawsuits stating that their loved ones body parts were illegally sold for an estimated $6 million dollars. That amount is based on figures obtained from federal and local investigators, public organizations and medical universities. 1. How can the red market be curbed or regulated? 11 P a g e

12 2. Should the red markets be made a part of the legal process of organ transplantation? 3. Should sanctions be put on countries that have allowed the trade to flourish? 4. How can process of organ donation be more inclusive in countries to provide a regulated basis for organ transplantation? 5. Is the selling of organs unethical from a legal perspective? 6. Can a commercial enterprise be created out of the need for organs concurrently with a legal regulated process of donation before or after death? 7. How should countries that have been suspected to be party to illegal organ trade be reprimanded? Links For Further Research P a g e