www.EULOD.

eu

IMPROVING THE
EFFECTIVENESS
OF THE ORGAN
TRADE
PROHIBITION IN
EUROPE
Recommendations

Authors: Judit Sándor, Violeta Beširević, Enikő Demény, George Tudor

Florea, Natalia Codreanu, Frederike Ambagtsheer, Willem Weimar.
3/31/2012
Improving the effectiveness of the organ trade prohibition in Europe.
Recommendations.
1

Authors
Judit Sándor,1 Violeta Beširević,1, Enikő Demény,1 George Tudor Florea,1 Natalia
Codreanu,2, Frederike Ambagtsheer,3, Willem Weimar.3

Center for Ethics and Law in Biomedicine, Central European University (CEU),
Budapest, Hungary1, Renal Foundation Moldova (RF), Chişinău, Moldova2 , Erasmus
University Medical Center (EMC), Rotterdam, The Netherlands3

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)".

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

Work package 3: Legal restrictions and safeguards for living donation in Europe
Deliverable No. 9: Scientific report (recommendations)

Improving the effectiveness of the organ trade prohibition in Europe

Table of Contents

PREFACE ........................................................................................................................................... 3

ROLE OF INTERNATIONAL ORGANIZATIONS IN LAW ENFORCEMENT .......................................4

THE PROHIBITION OF ORGAN TRADE IS INSUFFICIENT ....................................................................... 4
THE GLOBAL ILLICIT FLOW OF ORGANS .................................................................................................. 4
THE PROHIBITION OF TRANSPLANT COMMERCIALISM IS NOT EFFECTIVE .................................... 5
PROHIBITION OF DEMAND-DRIVEN CRIMES MAY HERALD SIGNIFICANT RISKS ........................... 6
WHAT WORKS AND THE WAY FORWARD FOR THE DECLARATION OF ISTANBUL ........................ 7
THE ROLE OF LAW ENFORCEMENT ................................................................................................8

THE ROLE OF HEALTH CARE PROFESSIONALS ............................................................................. 11

THE ROLE OF PREVENTION: EDUCATING HEALTH CARE PROFESSIONALS ............................. 14

THE ROLE OF ETHICS COMMITTEES: IMPROVING THEIR WORK IN MAKING DECISIONS ON

LIVING ORGAN DONATION............................................................................................................15

EDUCATION AND TRAINING FOR THE MEMBERS OF THE COMMITTEES AND OTHER
HEALTHCARE PROFESSIONALS INVOLVED IN LIVING ORGAN DONATIONS ........................... 16

RECOMMENDATIONS ON INCENTIVES ........................................................................................ 17

RECOMMENDATIONS ON IDENTIFICATION, PROTECTION AND ASSISTANCE OF (POTENTIAL)

VICTIMS OF ORGAN TRAFFICKING ............................................................................................... 19

FINAL CONCLUSIONS..................................................................................................................... 20

Improving the effectiveness of the organ trade prohibition in Europe

 PREFACE

3
Ever since the first transplantation this technology raised several ethical and legal issues. The
first successful non-regenerative organ transplantation took place in 1954 when Dr. Joseph E.
Murray transplanted a kidney from Ronald Herrick to Mr. Herrick's identical twin Richard, who
had been diagnosed with end-stage kidney failure. That time the initial ethical dilemma was
whether a healthy donor can be operated in order to save the life of the sick brother. That time it
was a miracle that without the use of immunosuppressive drugs, Richard survived with his
transplanted kidney for more than eight years. Since then transplantation has become a
gradually developing technology. The type and number of transplantable organs have increased,
especially since the last decade of the 20th century. By the twenty first century in developed
countries the number of available organs, infrastructural, and budgetary means could not keep
pace with the increased technological capacity for transplantation. National waiting lists have
become full and long, and the number of people who died while waiting in the line has also
increased. The other important element that created tension between developed and less
developed countries is the globalization, Europeanization and mobilization. Patients no longer
feel bound to the capacity of one health care sector. It is easier to travel and it is no longer
regarded as an exceptional luxury to seek health care beyond the national frontiers. At the EU
level, the European Commission has urged of addressing ethical and legal issues concerning
organ transplantation. One of the most important legal instruments was adopted in 2010, the
Directive 2010/45/EU of the European Parliament and of the Council of 7 July 2010 on standards
of quality and safety of human organs intended for transplantation. During this short term
project in our work package we attempted to map and to analyze laws, practices, cases, problems
with regard the violation of organ transplantation laws. From the minor violation of selecting
donor for the recipient to major and severe forms of violation of human rights, such as organ
trafficking cases were collected and analyzed. In our small group of this half of the work package
we also examined selected laws and practices in order to develop some recommendation which
may serve for legislation, ethics committees and further research. Our principle methods to this
study were legal methods of analysis which were ac-companied with policy analysis, field work,
interviews and finally recommendations. We presented our ideas in several conferences, at the
workshops of the EULOD Project held in Rotterdam, Sofia, Munich and in Berlin. We are grateful
for the comments that helped us to refine methods and arguments.

Improving the effectiveness of the organ trade prohibition in Europe

 ROLE OF INTERNATIONAL ORGANIZATIONS IN LAW
ENFORCEMENT

THE PROHIBITION OF ORGAN TRADE IS INSUFFICIENT1

The World Health Organization (WHO) first declared the prohibition of organ trade in 4
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.”2
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 de-
mand 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 mo-
bility have significantly increased. This leads to development of black markets that involve
various actors who increasingly make use of organs’ high profitability. Using combined
methods of legal analysis, media and field work we have identified several violations of the
existing norms of organ transplantation.

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 bil-
lion per year. It ranks the trade in human organs on number ten of the illegal activities studied
in terms of illegal profits made.3 The report further states that profits from these illicit markets
are making their way to transnational crime syndicates through vast international trade
networks. These networks take advantage of globalization and new communication and trans-
portation 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

1 Based on a personal viewpoint by Frederike Ambagtsheer & Willem Weimar, W. A Criminological Perspective: Why Prohibition of Organ Trade is Not
Effective and How the Declaration of Istanbul can Move Forward. American Journal of Transplantation 2012; 12: 571-575

2 World Health Organization Guiding Principles on Human Cell, Tissue and Organ Transplantation (last revised on May 26, 2008) www.who.int.

3 Haken J. Transnational Crime in the Developing World. Washington: Global Financial Integrity 2011.

Improving the effectiveness of the organ trade prohibition in Europe

illegal fields.4 Many of these networks are successfully integrated in legal structures and
institutions.5
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 traf-
ficking accounts come from all over the world, including Egypt, India, South Africa, the Phil-
ippines, Israel, Colombia, the Balkan Region, Turkey and Eastern Europe.6 A growing number 5
of countries, including the US, the UK, Macedonia and Canada report on patients leaving to
well-known organ exporting countries who allegedly buy organs on the black market.7
Only in very few cases have crime control efforts led to accusations by victims and prosecu-
tions of the accused. Indeed, organ trafficking may be one of the most difficult crimes to de-
tect. Moreover, its enforcement is not a priority of local, national and international law en-
forcement institutions. The universal response to the crime is characterized by punitive con-
demnation through legislation but awareness and expertise on how to detect and enforce the
crime is practically non-existent.

THE PROHIBITION OF TRANSPLANT COMMERCIALISM IS NOT EFFECTIVE

The Chapter 1 of the scientific report Improving the effectiveness of the organ trade
prohibition in Europe8 has illustrated how a universal condemnation against transplant com-
mercialism exists. However, a closer look at how the prohibition of commercialism is formu-
lated reveals that there is a lack of criminological and legal expertise about what exactly we are
trying to prevent by prohibition. For instance in the Declaration of Istanbul,9 commercialism
and trafficking are presented as being equally problematic crimes. However, coercion and
exploitation of donors (trafficking) differs from the sale and purchase of organs (com-
mercialism). Both acts warrant a different policy approach.

4 Castells M. The global criminal economy. End of Millennium. Oxford: Blackwell; 1998.

5 Naylor R. Wages of Crime. Black Markets, Illegal Finance and the Underworld Economy. Ithaca: Cornell University Press; 2002.

6 Budiani-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 M, Mehta RL, Schneiderman LJ, Sehgal A. Economic and health consequences of selling a kidney in India. JAMA
2002;288:1589; Allain J. Commentary Trafficking of Persons for the Removal of Organs and the Admission of Guilt of a South African Hospital.
Medical Law Review 2011;19:117–22; Padilla BS. Regulated compensation for kidney donors in the Philippines. Current Opinion in Organ
Transplantation 2009;14:120-3 ; Shimazono Y. The state of the international organ trade: a provisional picture based on integration of available
information. Bulletin of the World Health Organization 2007(85):955-62; Mendoza RL. Colombia’s Organ Trade: Evidence from Bogotá and
Medellín. Journal of Public Health 2010(18):375-84 ; Marty D. Inhuman treatment of people and illicit trafficking in human organs in Kosovo.
Committee on Legal Affairs and Human Rights. Switzerland, Alliance of Liberals and Democrats for Europe. Parliamentary Assembly. Council of
Europe 2010. www.coe.int.

7 Canales MT, Kasiske BL, Rosenberg ME. Transplant Tourism: Outcomes of United States Residents Who Undergo Kidney Transplantation Overseas.
Transplantation 2006;82(12):1658-61 ; Cronin AJ, Johnson RJ, Birch R, Robert IL, Randhawa G. Solving the Kidney Transplant Crisis for Minority Ethnic Groups in
the UK: Is Being Transplanted Overseas the Answer? In: Willem W, Bos MA, Busschbach J, editors. Organ Transplantation Ethical, Legal and Psychosocial
Aspects. Expanding the European Platform. Vol. II. Lengerich: Pabst; 2011. p. 62-72 ; Ivanovski N, Masin J, Rambabova-Busljetic I, Ivanovski O, Pusevski V,
Dohcev S, et al. The Organ Shortage in the Balkans! Pakistan - The New Hope on the Horizon. In: Weimar W, Bos MA, Busschbach J, editors. Organ
Transplantation: Ethical, Legal and Psychosocial Aspects. Expanding the European Platform. Vol. II. Lengerich: Pabst; 2011. p. 58-61 ; Gill JS, Diec O, Landsberg
DN, Rose C, Johnston O, Keown PA, et al. Opportunities to deter transplant tourism exist before referral for transplantation and during the workup and
management of transplant candidates. Kidney Int 2011;79(9):1026-31.

8 www.EULOD.eu, Deliverable No. 9: Scientific report (recommendations), Improving the effectiveness of the organ trade prohibition in Europe.

9 Participants in the International Summit on Transplant Tourism and Organ Trafficking Convened by the Transplantation Society and International
Society of Nephrology. The Declaration of Istanbul on Organ Trafficking and Transplant Tourism. Transplantation, vol. 88, no. 8 (2008): 1013–1018.

Improving the effectiveness of the organ trade prohibition in Europe

Many instruments designed to tackle organ trafficking and transplant commercialism do not
take account of this distinction. They can improve their strategy to prevent and deter commer-
cialism and trafficking in a number of ways. In the following paragraphs we explain why and
how. We focus especially on the prohibitionist discourse by the Declaration of Istanbul and the
WHO and its Guiding Principles on Human Cell, Tissue and Organ Transplantation. Whereas
the Declaration is intended to influence transplant professionals and societies, the WHO 6
intends to influence governments. Both act in concert to address growing problems of
transplant commercialism, transplant tourism and trafficking by strict prohibition and
penalization. While WHO developed a policy to tackled organ trade, the Council of Europe
took a human rights approach in dealing with the questions of organ trade. The European
Union approached the same question from the aspects of security and traceability.

PROHIBITION OF DEMAND-DRIVEN CRIMES MAY HERALD SIGNIFICANT RISKS

Prohibition of demand-driven crimes is not new to the field of criminology. For centuries
countries have been struggling to control criminalized, demand-driven activities often with
limited effect.10 Disregarding evidence that crime does not readily respond to severe sentenc-
ing, legislatures have over the years repeatedly adopted a punitive ‘law and order’ stance.
David Garland describes this ambivalent response as a form of acting out, which is to say that
legislatures engage in a form of impulsive and unreflective action, avoiding realistic recogni-
tion of underlying problems.11 The reasons behind these repressive policies are often political:
they are motivated by politically urgent needs to ‘do something’ decisive about crime, restore
public confidence, illustrate good intention and demonstrate state control. These policies are
seldom evidence-based, are not aimed at removing the root cause of crimes and do not
acknowledge the risks that may arise.12
A wealth of studies illustrates the resilience of demand-driven activities such as drug use,
gambling, alcohol consumption and prostitution to prohibition.13 These studies also highlight
how harms associated with these demand-driven crimes including violence, disorder and cor-
ruption, are in fact caused by their prohibition.14 These studies show how prohibition generates
black markets, drives up prices, provides illegal incomes, displaces crime to other regions and
drives trade underground leading to higher crime rates and victimization.15 Despite substantial
differences in nature between demand-driven crimes including the organ trade, drug trade and
prostitution, the ways in which most states attempt to control them are similar. Unintended
implications that may arise from prohibition of crimes such as the drug trade may be equally
relevant and applicable to organ trade.
The risks known to arise despite or as a result of prohibition of demand-driven crimes should
be taken seriously. The evidence that organ trade occurs despite its prohibition warrants a

10 MacCoun RJ, Reuter P. Drug War Heresies. Cambridge: Cambridge University Press; 2001.
11 Garland D. The Culture of Control. Crime and Social Order in Contemporary Society. Chicago: The University of Chicago Press; 2001
12 Ibid.

13 Ibid.

14 MacCoun RJ, Reuter P. Drug War Heresies. Cambridge: Cambridge University Press; 2001. MacCoun RJ, Reuter P. Drug War Heresies. Cambridge: Cambridge
University Press; 2001 ; Bouchard M. On the Resilience of Illegal Drug Markets. Global Crime 2007;8(4):325-44 ; Best D, Strang J, Beswick T, Gossop M.
Assessment of a Concentrated, High Profile Police Operation. No Discernible Impact on Drug Availability, Price or Purity. British Journal of Criminology
2001;41(4):738-45.

15 Best D, Strang J, Beswick T, Gossop M. Assessment of a Concentrated, High Profile Police Operation. No Discernible Impact on Drug Availability, Price or
Purity. British Journal of Criminology 2001;41(4):738-45.

Improving the effectiveness of the organ trade prohibition in Europe

careful, critical and realistic approach by the WHO, the Custodian Group and others who pro-
hibit or encourage its criminalization. Between prohibition and decriminalization, a wide
range of alternatives exists that can be addressed to control organ trade more effectively. The
point is not to choose one over the other, but to think critically and be realistic with what we
can achieve and with what means. Below we present a number of ways in which the current
prohibitionist strategy of organ trade can be improved. 7

WHAT WORKS AND THE WAY FORWARD FOR THE DECLARATION OF ISTANBUL
To assess what works, we need to get our definitions straight. Organ trade takes on a
wide variety of forms: only after we agree on the definition of commercialism and trafficking,
and on what we find condemnable, can we agree on their prohibition. Putting a price on
organs (commercialism) is different from coercing someone into selling one (trafficking).
The Declaration correctly defines and differentiates trafficking from commercialism, yet it
does not mention how both acts should be approached by policy. Its principles in our opinion
wrongly conflate organ trafficking and transplant commercialism to constitute one and the
same problem that both warrant equally repressive, punitive responses. However, policies
aimed to suppress or reshape an illegal trade or market work differently from policies address-
ing coercion and other harms associated with trafficking. Evaluative studies have shown that
criminalization of commercialism is likely to reinforce trafficking.16 Indeed, it has been argued
that “there is much more scope for exploitation and abuse when a supply of desperately
wanted goods is made illegal.”17 We therefore claim that the Declaration should clearly dif-
ferentiate between policies needed to address commercialism and those needed to address
trafficking.
First of all, to tackle and prevent organ trade, the root cause of the problem (organ scarcity)
should be addressed. This ultimately means boosting organ supply. One such strategy that the
Declaration already strongly supports is to help governments implement deceased donation
programmes to increase deceased donation rates and achieve self-sufficiency. Such initiatives
are being conducted in the Balkans18 and Black Sea region19with the support of the Custodian
Group, the WHO and European Union. Yet promotion of deceased donation alone is not
enough to fill the gap between demand and supply of organs.
The WHO and Custodian Group should therefore, secondly, also encourage expansion of living
donation in the same manner as they encourage deceased donation. They should do so by
explicitly stating the need to promote living donation in the text of the Declaration and Guid-
ing Principles. The Custodian Group and WHO should furthermore encourage governments to
remove restrictions regarding living unrelated -or anonymous donation to make alternative
living donation programmes possible.20 Such programs should be implemented in consistence

16 MacCoun RJ, Reuter P. Drug War Heresies. Cambridge: Cambridge University Press; 2001.

17 Radcliffe-Richards J, Daar AS, Guttmann RD, Hoffenberg R, Kennedy I, Lock M, et al. The case for allowing kidney sales. The Lancet 1998;351(9120):1950-2 ;
Erin CA, Harris J. A monopsonistic market: or how to buy and sell human organs, tissues and cells ethically. In: Robinson I, editor. Life and death under high
technology medicine New York Manchester University Press; 1994. p. 134-56.

18 The Transplantation Society. Balkan Initiative in Deceased Donation Meeting, Skopje, Macedonia Tribune 2011 April.

19 European Directorate for the Quality of Medicines and Health Care. Launch of a 3 year programme for the development of donation and transplantation
activities in the Black Sea area. Strasbourg, France. Council of Europe 2011 www.edqm.eu.

20 Roodnat JI, Kal-van Gestel JA, Zuidema W, van Noord MA, van de Wetering J, IJzermans JN, Weimar, W. Successful expansion of the living donor pool by
alternative living donation programs. Am J Transplant 2009 Sep;9(9):2150-6 ; Levey AS, Danovitch G, Hou S. Living Donor Kidney Transplantation in the United
States - Looking Back, Looking Forward. Am J Kidney Dis 2011 (in press).

Improving the effectiveness of the organ trade prohibition in Europe

with international standards to ensure quality and safety of donors and recipients. Current
restrictions to unrelated donation are based on the belief that living unrelated donation
induces trade. However, there is no evidence of illegal trade in countries with well-organized
systems allowing for high numbers of living unrelated donation such as in the US, the Nether-
lands, Norway and the UK.
A third example is to support regulated trials of incentives for donation.21 This asks for a more 8
liberal approach by both the WHO and the Declaration towards commercialism. In our
opinion, there is no validation for Declaration’s and WHO’s premise that commercialism
should be banned because it leads to profiteering and trafficking. Trafficking will occur as long
as scarcity exists, with or without prohibition. A more realistic approach would hence be the
implementation of harm-reduction policies as witnessed in drug- and prostitution regimes.
Incentives for donation may perhaps be promising examples of a harm-reduction approach.
The Declaration should provide scope for governments to explore ways to increase donation
through incentives.
Finally, we think that international strategy to combat organ trafficking should be improved by
prioritizing enforcement. There is no doubt that organ trafficking is and should remain
prohibited universally. The text of the Declaration already emphasizes the prohibition and
penalization of acts including brokering and other (medical) practices that aid or encourage
trafficking. Indeed, organ trafficking cannot occur without the involvement of medical staff. A
recent organ trafficking network uncovered in South Africa illustrates the criminal in-
volvement of medical staff, including nephrologists, surgeons and administrative staff who
were found guilty of performing over one hundred illegal kidney transplants and receiving
payments for them.22 This case also demonstrates the immense investment that is needed to
eventually bring perpetrators to justice. It took investigators seven years to succeed in gather-
ing enough evidence to bring the case to court. However, dedicated investigations and efforts
to identify collusion in hospitals and other criminal activities, in short, the enforcement and
police intelligence necessary to bring such cases to court, does not exist in other countries.
Organ trafficking case law is practically non-existent. Prohibition of organ trafficking largely
remains a paper exercise. Strict, legislative prohibitionist efforts, no matter how sophisticated,
are fruitless if they are not accompanied by enforcement by local, national and international
policing agencies.

THE ROLE OF LAW ENFORCEMENT

The organ trafficking and transplant commercialism are prohibited practically worldwide, yet
non-legislative responses to halt these crimes are almost non-existent. In June 2010, in Vienna,
the United Nations Office on Drugs and Crime (UNODC) organized an expert meeting about
the incidence of trafficking in persons for the removal of organs. ELPAT and EULOD
representatives were invited to participate.
At this meeting three issues became evident: first, organ trafficking researchers have strong
knowledge and information about organ trafficking, but this information is hardly shared
amongst them. Doctors also do not share information about organ trafficking. Second, there

21 Erin CA, Harris J. A monopsonistic market: or how to buy and sell human organs, tissues and cells ethically. In: Robinson I, editor. Life and death
under high technology medicine New York Manchester University Press; 1994. p. 134-56.

22 Allain J. Commentary Trafficking of Persons for the Removal of Organs and the Admission of Guilt of a South African Hospital. Medical
Law Review 2011;19:117–22.

Improving the effectiveness of the organ trade prohibition in Europe

are no partnerships between researchers, transplant doctors and judicial/law enforcers. Third,
there is no awareness of the crime with judicial / law enforcement authorities. Organ traffick-
ing is not on the ‘enforcement agenda’ of these authorities. The lack of multinational partner-
ships hampers effective, non-legislative response to organ trafficking.
Perhaps the most active anti-organ trafficking instrument is the Declaration of Istanbul on
Organ Trafficking and Transplant Tourism. Drawn up by the international transplant commu- 9
nity, the Declaration has proven to have significant influence. Over one hundred transplant
organizations endorse its principles. The Declaration’s Custodian Group and four task forces
have been established to implement and monitor its effects. Perhaps the greatest achievement
for the Declaration will thus lie in bridging the gap between the medical field and the criminal
justice realm. Indeed, the Declaration does not have a binding force but it may be the most
influential force to stimulate governments into addressing enforcement strategies.

Recommendation 1. - Develop enforcement strategies

 Awareness about the crime should be raised with local, national and international law
enforcement institutions. Examples are INTERPOL, EUROPOL, UNODC, but also more
local institutions such as national police service agencies.
 Such awareness should be raised amongst others, by (international) transplant societies
and committees such as the Custodian Group of the Declaration of Istanbul.
 Awareness can be reached by sharing information about organ trafficking cases with
these institutions. Organ trafficking researchers and other experts could send their
reports and research findings to these target groups. Dissemination of information can
occur through the competent authorities and Member States of EU and UN bodies.
 Partnerships should be established between various groups. Target groups are e.g.:
 Judicial and law enforcement authorities (a. those involved in OT data collection and en-
forcement, i.e. police staff, police investigators, prosecutors b. anti-THB experts, i.e. the
national rapporteurs on trafficking in human beings
 Transplant professionals (a. surgeons, nephrologists, nurses, transplant coordinators b.
representatives of national transplantation authorities and international transplant
organizations, e.g. ELPAT, ESOT, The Transplantation Society (TTS), Eurotransplant
(ET) and the Declaration of Istanbul Custodian Group)
 International organizations: UNODC, EUROPOL, IOM, WHO, Council of Europe, Euro-
pean Commission. This group involves policy makers and decision makers.
 Human Rights NGOs involved in protection of THB victims.

Enhanced collaboration between these partnerships can be encouraged by EU-funding

mechanisms for research projects and cooperation actions, such as by the European
Commission Home Affairs Program. Other platforms for enhanced collaboration lie with the
Council of Europe, the WHO and the OSCE. These organizations are known to have written
organ trafficking reports, yet little collaboration exists between these organizations and law
enforcement institutions. Toolkits for Member States and Competent Authorities should be
developed that provide indicators for police personnel to identify organ trafficking activities.
Training of police investigators should be encouraged regarding evidence gathering of organ
trafficking cases and know-how about the modus operandi of the actors involved, training of
prosecutors and judges. Bilateral and/or multilateral cooperation in cross-border criminal pro-
cedures should be encouraged and established.

Improving the effectiveness of the organ trade prohibition in Europe

The crime of trafficking in human beings leads to the direct infringement of a number of the
victim’s human rights, including the right to life, the right to human dignity, freedom of
movement, the prohibition of torture and other cruel, inhuman and degrading testament, the
right to health and the prohibition of discrimination. Since exploitation is generally viewed as
fundamental to the trafficking experience, and having in mind Article 26 of the Council of
Europe Convention on Action against Trafficking in Human Beings which envisages that “Each 10
Party shall, in accordance with the basic principles of its legal system, provide for the
possibility of not imposing penalties on victims for their involvement in unlawful activities, to
the extent that they have been compelled to do so”, we recommend that states provide for
explicit right to immunity from prosecution for victims of trafficking in human beings:

Recommendation 2 - Provide non-punishment for the victims of trafficking

 All states should provide for explicit right to immunity from prosecution for victims of
trafficking in human beings on the grounds indicated in Article 26 of European
Convention on Action against Trafficking in Human Beings.
 Since the omission of the non-punishment provision represents a substantial oversight in the
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, the state parties to the UN Trafficking Protocol should initiate the amendment
providing for an explicit legal protection against criminal prosecution of the victims of
trafficking, as it has been already envisaged in Article 5 of the UN Protocol against the
Smuggling of Migrants by Land, Sea and Air, which like the Trafficking Protocol, also
supplements the UN Convention against Transitional Organized Crimes.

It follows from the principle that human body and its parts shall not, as such, give rise to fi-
nancial gain, and stressing that the prohibition of financial gain with regard to organ is part of
the legal acquis of the Council of Europe, but underlying the statement in the transplantation
Council of Europe Parliamentary Assembly Recommendation 1611 (2003) that “it is a matter of
grave concern that following illegal transplants the donor’s state of health generally worsens in
the medium term, due to the absence of any kind of medical follow-up, hard physical work and
an unhealthy lifestyle connected to inadequate nutrition and a high consumption of alcohol...”.
Governments are obliged to protect human rights of its citizens and all others within their ju-
risdiction, which includes securing them access to health care and legal services, while at the
same time addressing and eliminating causes of poverty.

Recommendation 3 - Provide criminal immunity for impoverished and vulnerable

sellers

 All states should implement legislative measures which will secure criminal immunity for
impoverished and vulnerable sellers and potential sellers of organs unless they are not
themselves engaged in organ trade as organ brokers.

As trafficking in human beings for organ removal is a form of an organized transnational

crime, we stress that only broad cooperative measures implemented globally, regionally and on
the national level could produce effective results in combating trafficking and alleviating the
roots of its cause – “poverty, underdevelopment and lack of equal opportunity” (Article 9 of

Improving the effectiveness of the organ trade prohibition in Europe

UN Trafficking Protocol). Therefore, to reduce human trafficking for organ removal the
improvement of national law enforcement policies should embrace:

Recommendation 4 - Develop law enforcement polices to suppress trafficking in

human beings for organ removal
11
 Governments should adopt measures to fight against trafficking in human beings
including the trafficking for organ removal in accordance with the European Convention
on Action against Trafficking in Human Beings and recommendations issued by GRETA,
which is a body responsible for montoring the implementation of the Convention by
Contracting States.
 States should show strict adherence to the principle aut dedere aut judicare: a state
should make every effort either to prosecute the trafficker or extradite him/her to the
state having jurisdiction.
 States should adopt legislative measures to establish (a) extraterritorial jurisdiction for
instituting the criminal proceedings against the perpetrator and (b) a conditional
universal jurisdiction which would provide for prosecution by any state even in the
absence of any connection between the state, the perpetrator and the victim, provided
that the perpetrator is in custody of the state concerned (forum de prehensionis
jurisdiction).
 States should strengthen international police cooperation aimed at better exchange of
information between countries of origin and countries of destination through the
established networks such are INTERPOL, EUROPOL and SECI (Southeast European
Cooperative Initiative Regional center for Combating Trans-Border Crime) with an aim
to eliminate a high number of unreported cases.

Organ trade for the purpose of organ transplantation mainly exists due to shortage of organs.
Since organ trade has become a widespread transnational practice, national and international
policies to combat organ trade (commercialism) should conform the following:

Recommendation 5 - Adopt measures for the explicit criminalization of organ trade

 All states should adopt legislative measures which would expressly prohibit making
financial gain with human organs and advertising the need for or availability of organs
with a view of offering or seeking finical gain.
 To prevent organ trade for organ transplantation purposes organ trade should be
criminalized on the national level.
 All states should support the UN and the Council of Europe efforts to adopt international
convention that would define trafficking in organs for transplantation purposes and
introduce criminal-law measures to fight against such practices.

THE ROLE OF HEALTH CARE PROFESSIONALS

Improving the effectiveness of the organ trade prohibition in Europe

The fight against trafficking in persons for the purpose of organ removal, organ trafficking and
organ trade, and organ tourism is complex process. International and national legislative
frameworks emphasize the necessity of cooperation amongst various actors involved in this
field. While there are many issues that shall be handled with the help of other professionals
and institution (police, criminology, departments fighting organized crime, so on) the public
health sector and the health care professionals have also some attributions in fighting organ 12
trafficking, organ trade and organ tourism. It is in the paramount interest of the health care
professionals involved in transplantation that their day by day life saving efforts not to be
shadowed by the phenomena of organ trafficking and trade.
One of the first international instruments on this filed, Council of Europe Recommendation
no. 1611 of 2003 on Trafficking in organs in Europe propose introduction of sanctions also for
the medical staff involved in transplanting organs obtained through illegal trafficking; the
denial of national medical insurance reimbursements for illegal transplants abroad; the denial
of national insurance payments for follow-up care of illicit transplants, except where such a
refusal would endanger the life or health of patients unable to cover the cost of vital treatment
themselves.23 The WMA and WHO Guidelines on human organ and tissue transplantation also
address the issue of the professional obligation of physicians.24

Recommendation 6 - Strengthen the responsibilities of health professionals in case

of living organ donation

 The medical staff should consider seriously in proposing a donation in case of emergency
when the seriousness of the recipient health may imply a pressure loud that could
interfere in the potential donor’s information and decision making process.
 The medical staff shall carefully assess the risk benefit balance for donor and recipient.
Donors should not be called on to donate in clinically hopeless situations.
 The medical staff shall periodically overview the informed consent guidelines to verify
that they contain all the possible and up to date information about the conditions of the
donation and its effects (including in them the latest results of research on the long term
effects of donation, for example).
 Commitment to observe WMA guiding principles on human organ and tissue donation
and transplantation

It follows from our study that victims of organ trade and trafficking are often the poorest who
have difficulties to access even basic health care services. Based on the basic ethical and legal
norms these victims should have access to health care to save their lives and prevent the dete-
rioration of their health condition.

Recommendation 7 - Strengthen the responsibilities of health professionals towards

the victims of organ trafficking, trade, or tourism (to organ providers)

 Adequate information should be provided to all living organ donors ( and if applicable to
their families) about the medical, health and legal impact of organ donation
 Medical records should be adequately kept

23 Council of Europe Parliamentary Assembly Recommendation 1611 (2003) Trafficking in organs in Europe

24 WMA Guidelines, WHO Guiding Principles

Improving the effectiveness of the organ trade prohibition in Europe

  Assessment of the nature of relationship between the donor and recipient should be made
according to the relevant laws, but in case of doubt legal and psychological consultation
should be conducted
 In case of clandestine organ removal, victims shall be eligible for emergency and post-
operative medical treatment
 Information should be provided to the victims on the accessibility of health care and legal 13
aid
 Independently to the legal (criminal sanctions) imposed on the intermediates and health
professionals institutional ethics committees (in the lack of ethics committees) the head
of the institution should be notified about the case to make necessary prevented steps

It is almost impossible to prove whether instances of patients traveling abroad for organ
transplants constitute ‘real’ cases of transplant tourism. The cross-border and complex nature
of this act possibly makes it one of the most difficult crimes to prove and prosecute. This
complexity raises challenges for doctors and other health care providers confronted with
patients who opt for transplants abroad.

Recommendation 8 - Strengthen the responsibilities of health care professionals in

case of transplant tourism (organ receivers)

 By providing information about the laws relevant to the procedure

 By providing information about the risks of the pre-and post operative journey
 Before transplantation: it is important to identify patients at risk for organ tourism,
information on risk and dangers, moral aspects, cooperation in preparing organ tourists
 After transplantation: care should be provided to returning organ tourists, (obligation of
care)
 Rules for re-admittance to the waiting list ( in case another transplantation becomes
necessary) should be respected
 Medical records should be adequately kept

Transplant tourism shifts the traditional role of doctors as health care providers to “agents”,
encouraged to deter and prevent transplant tourism.25 Below, we present recommendations for
health care professionals confronted with patients who – presumably – bought organs for
transplants abroad.26,27

Recommendation 9 - Health care providers should dissuade patients from seeking

organs abroad

25 Gill, J. S., A. Goldberg, Prasad, G.V. et al. Policy Statement of Canadian Society of Transplantation and Canadian Society of Nephrology on Organ Trafficking
and Transplant Tourism, Transplantation 2010; 90(8): 817-820

26 This section is based on a paper by Frederike Ambagtsheer, Damián Zaitch, René van Swaaningen, Wilma Duijst, Willij Zuidema, and Willem Weimar,
“Cross-border quest: The reality and legality of transplant tourism” in the Journal of Transplantation (forthcoming in 2012)

27 Gill, J.S., Gjertson, D., Lipshutz, G. et al. Transplant Tourism in the United States: A Single-Center Experience, Clin J Am Soc Nephrol 2008; 3: 1820–1828 ;
Canales, M. T., B. L. Kasiske, Rosenberg, M.E. Transplant Tourism: Outcomes of United States Residents Who Undergo Kidney Transplantation Overseas,
Transplantation 2006; 82(12): 1658-1661 ; Sajjad, I., Baines, L.S., Patel, P. Commercialization of Kidney Transplants: A Systematic Review of Outcomes in
Recipients and Donors, Am J Nephrol 2008; 28(5): 744-754

Improving the effectiveness of the organ trade prohibition in Europe

  Considering the medical complications that accompany transplants abroad, health care
providers should dissuade the patient from going abroad by warning him/her against the
medical risks.
 Doctors should refrain from informing or “educating” all patients about going abroad:
this may bring the unintended consequence of putting ideas into the heads of patients
who otherwise might not have considered the possibility at all. Such warnings should 14
only be directed towards the individual patient who has expressed an interest or desire to
undergo a transplant abroad.

While the international law is clear in its intension to prohibit all forms of organ
trade, health care professionals often meet ambiguous cases when (suspected) organ
tourists come for pre-or post-operative treatment. Therefore we think it is essential to
provide professional guidelines also for practitioners that help to translate
international norms in context of the everyday life.

Recommendation 10 - Develop professional guidelines for professionals who may be

in contact with organ tourists

 Patients in general have a right to access their medical records and to receive a copy of it.
 Whereas the patient’s right to receive medical care remains untouched, it could be
claimed that the doctor may consider disclosing patient information to the police. This
consideration may arise in the situation where the patient outright declares to his doctor
that he is going to buy an organ for transplant abroad from a trafficked donor.
 Medical doctors should receive clear guidance (in the framework of their training) that
they should not assist patients in buying organs, even if they would go abroad to do that.
The collision of professional duties; respect the patients’ privacy on one hand and the
duty not to commit and to assist crime, on the other hand should be eliminated by
informing patients’ about the law and the health risks. Beyond these activities health care
professionals should not promote or assist in any way the activity of buying organs by
their patients.


THE ROLE OF PREVENTION: EDUCATING HEALTH CARE

PROFESSIONALS

According to the international instruments on trafficking with human beings for the purpose
of organ removal or organ trafficking prevention shall have a very important role in the fight
against these negative phenomena.28 As it is stated in the reports on this phenomenon organ
trade, trafficking and tourism is demand driven. One way of combating it is to increase the
availability of legally procured organs and to keep in the framework of the legality the dona-
tion process.
In a first step the volume of deceased donation shall be maximized, and living organ donation
must be deemed a subsidiary practice.29 One measure towards this major goal can be the

28 Council of Europe Convention on Action against Trafficking in Human Beings, Chapter II, Article 5; Article 6; Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, supplementing the UN Convention on Organized Crime (2000), Art.9.

29 Observatori de Bioethica I Dret. Document on the Protection of Living Donors for Transplants, Barcelona, November, 2011, p. 53.

Improving the effectiveness of the organ trade prohibition in Europe

education of the healthcare professionals (and of the media), which is regarded as the most cost
effective means of increasing the public’s willingness to donate.30 For increasing the rate of
deceased donations a special attention shall be provided for improving the knowledge of health
professionals not directly involved in transplantation about transplantation issues.
The Spanish Model of Organ Donation can be regarded as a best practice in this regard and a
great effort in training programs targeted to all the professionals directly or indirectly involved 15
in the process of donation was one of the main elements of this model. These training
programs cover each step in the process of donation from donor detection and maintenance to
legal aspects including brain death diagnosis, family approach, and organizational issues. In
addition, training in areas such as management of resources or relation to the mass media has
been also developed.31
In the context of living organ donations the educational process could aim to improve the
functioning of the committees involved in living organ decision making in order to be more
efficient in preventing the attempts of illegal activities that might occur in the transplantation
process. Finally it would also involve raising awareness on the existence of the negative phe-
nomenon of organ trafficking, trade and tourism, for making health care professionals alert to
the detection of possible frauds.

THE ROLE OF ETHICS COMMITTEES: IMPROVING THEIR WORK IN

MAKING DECISIONS ON LIVING ORGAN DONATION

There can be observed a growing role of ethics in regulating organ transplantation in

Europe. New legislative measures in public health law have stipulated the presence of bio -
ethicist in the specialized committees supervising the living organ donation process (in
Romania, etc), prescribed the creation of a local or central Ethics Committee dealing with
transplantation (for ex. Slovenia, Check Republic, Bulgaria), or required the involvement of
Hospital Ethics Committee in the evaluation of living organ donation process (for example
Hungary). The major role of such requirements is to ensure the observance of major ethical
principles and requirements related to transplantation; to wither suspicions surrounding
paid organ exchanges between donors and recipients and wither potential organ trafficking
schemes or organ trade. The relevance of the activity of these Committees is enhanced in
countries permitting unrelated living donations where the potential of abuse is much
higher.
By strengthening the role of ethics in LOD decision making process violations of the trans-
plantation law could be minimized, the suspicions can be eliminated, and this can result in a
better context in which LOD is carried out.
However, at present the decision-making practice of such committees is far from being
unitary in translating the law into practice through purely objective criteria. While there
are some shared principles that shall guide Ethics Committees’ decision making, such as
objectivity, impartiality, professionalism, transparency there exists a diversi ty in
application and evaluation of principles in practice. The actual functioning of the
committees are correlated with such contextual factors as: the institutional environment;
the role of ethics in clinical decision making in that country/the transplantation unit
(preparation of doctors in the field, good will, etc); the experience and professional

30 Council of Europe. Organ shortage: current status and strategies for improvement of organ donation - A European consensus document. xii

31 R. Matesanz, B. Dominguez-Gil / Strategies to optimize deceased organ donation. Transplantation Reviews, vol.21 (2007), 177–188, at 183.

Improving the effectiveness of the organ trade prohibition in Europe

background of the committee members; the larger socio economic and cultural context.
The context therefore matters, however some organizational steps could be recommended
cross-nationally for an enhanced transparency in LOD decision-making. These are the
followings:

Recommendation 11 - Empower the work of ethics committees 16

 Legislators should provide the possibility of two alternate commissions in one hospital
unit (the potential donor and recipient to be assessed by separate health care team if
possible)
 Clear cut rules should be developed on the term limit and on formation and membership
changes within the commission
 Precise definition of the Committee’s roles is necessary to avoid debates on competence
 Material/financial conditions for the work of the Committees should be provided
 The decision making process of this Committees should be transparent and accountable
 A member of the Ethics Committee shall act as the “donors defender”
 Establish procedures to follow when donation does not proceed for various reasons
(medical, donor’s change of mind)
 Higher heterogeneity of members’ backgrounds and affiliations
 Bringing non-transplantation unit members within, or rotating the membership of
commissions among transplantation centers
 Ensuring the presence of a professional with specialization in medical ethics/bio-ethics
 External supervisory body overseeing the commission’s work
 More research on the activity of the Committees
 Education and training for the members of the Committee

EDUCATION AND TRAINING FOR THE MEMBERS OF THE

COMMITTEES AND OTHER HEALTHCARE PROFESSIONALS
INVOLVED IN LIVING ORGAN DONATIONS

Certain transplantation centers are in the position to evaluate more living organ donors than
others due to the difference in rate of living organ donors among countries in Europe, there-
fore in their day by day experience have to face more cases which inevitably raise more issues
to solve and decide on. Other centers have more experience in ethical deliberations, or have
been functioning for a longer period of time already. Therefore it would be beneficial if
members of various committees could be able to discuss the issues raised during the evalua -
tion with their colleagues working in other Committees in different clinical settings or in dif-
ferent counties, and to exchange opinion and discuss possible solutions. During such
meetings they could be also updated by other experts about issues related to organ
trafficking and other illegal activities related to organ transplantation and how they could be
helpful in preventing them.

Recommendation 12 - Provide policy training for committee members and other

health care professionals involved in living organ donations on the fight against
organ trade and organ trafficking

Improving the effectiveness of the organ trade prohibition in Europe

  Organize workshops/meetings where exchange of best practices on the work of the
Committees is made possible.
 Periodically invite also experts in the field of anti-trafficking who could give update
information for the medical staff on the current issues related to organ trade and
trafficking.
17
Professional associations involved in transplantation might facilitate the organization of
workshops during which the professionals involved in living organ donation decision making
would be able to exchange best practices and to discuss the issues emerging during LOD de-
cision making.
The workshops shall also include awareness raising on illegal activities in organ transplanta-
tion. Such workshops or trainings could be organized as satellite meetings of congresses, for
example.
Education materials could be generated based on the previously mentioned research.
An important educational tool could be the professional guidelines for the evaluation of living
organs donors. These already exist in many transplant centers but still not in each country.

RECOMMENDATIONS ON INCENTIVES

Mapping various organ trade and trafficking cases and laws that that try to prevent them it is
striking that although legal provisions in the countries where our studies were made are con-
sistent in prohibiting organ trafficking and organ trade still many violations of the legal norms
are justified by the phenomenon of organ scarcity. Scarcity seems to be a magic word as it
often indicates the necessity to shift and change the previous legal policy. In the legal debates
on organ transplantation scarcity of organs is often serves as the ultima ratio.
And, of course, in the careful analysis of the situation it is not the scarcity of organs, as such
that provides challenges to health care. It is the combination of many other things, such as the
lack of information, trust or poor infrastructure or lack of solidarity. In fact, number of trans-
plantation is increasing annually and by now scientific developments have made it medically
possible to replace both structural and cellular human body parts. Transplant procedures con-
tinue to develop and in the future that may offer good alternative treatment for diabetes melli-
tus and even for some malignant diseases. Despite the technological development experts still
warn policy makers that there is a serious organ scarcity. On the other hand social scientists
and the public often feel that we live an age when human tissues, organs are collected in an
unprecedented scale.
There are many reasons for the shortage of donors (rather than organ scarcity. The majority of
organ donors are patients who die in hospitals and “less than 3% of the deaths in hospitals are
diagnosed with brain related criteria before cardiac arrest, and therefore the number of poten-
tial organ donors is low.”32
Indeed, if one looks at the long waiting lists for organs and slow progress of alternative thera-
peutic possibilities (such as stem cell research) one may see the need to re-examine the current
legal policy for organ donation. Paradoxically when transplantation were relatively new,
dangerous and rare, donors could feel more like heroes while when it has become a “routine”
treatment donors are less likely want to participate in something that is not so heroic any
longer.

32 Organ Donation and Transplantation Policy Options at EU Level, Consultation Document, 27 June, 2006, EU Commission

Improving the effectiveness of the organ trade prohibition in Europe

Incentives as a solution for “organ scarcity” were several times recommended during the EU-
LOD workshops. While the European legal framework in several instances (repeatedly and
consistently) emphasize the prohibition of financial gain, little gap has remained for offering
some benefit in kind. In the literature for instance, Eugene Volokh argues that a "right of
medical self-defense ... makes [an] organ sales ban presumptively improper and unconstitu-
tional when the organs are needed to protect people's lives. 18
From our case studies we concluded it is usually the poor who donate and poverty is perhaps
the most significant factor in making a person vulnerable to coercion. As it follows any meas-
ure that might be implemented here should take into account vulnerability. First we believe
more information were necessary to notify the public about the phenomenon of “organ scar-
city”. Second, in places where anomalies, such as violation of legal norms, organ trade, and
organ trafficking cases were observed usually the infrastructure for legal forms of transplanta-
tion is poor.
As it follows a more even distribution, if necessary possibility for European education, ex-
change programs on organ transplantation and the possibility to apply for funding in poor
regions were a good option to tackle the problems of health inequalities. In our study it did not
come as surprise that the major cause for organ trafficking was not so much the legal la-cuna
but more the problems with enforcement and health inequalities.
Recitals of the EU directive clearly engage with the cultivation of altruism. For instance, recital
(19) mentions altruism as an important factor in organ donations. In the spirit of the directive
non-payment is directly linked to security.
“To ensure the quality and safety of organs, organ transplantation programs should be founded
on the principles of voluntary and unpaid donation. This is essential because the violation of
these principles might be associated with unacceptable risks. Where donation is not voluntary
and/or is undertaken with a view to financial gain, the quality of the process of donation could
be jeopardized because improving the quality of life or saving the life of a person is not the
main and/or the unique objective. “

Recommendation 13 - Ethical incentives: The necessity to promote voluntariness

 Donation should be voluntary and independent from direct financial incentives and it
should be based on clear and accurate legal and ethical arrangements. Public exhortation
campaign and cost of treatment should be compensated.
 Donation may be stimulated by health care benefits but in general solidarity should be
promoted with a combination of different legal policy instruments.

Examples of successful alternative living donation programs are national kidney-exchange,

ABO incompatible programs and domino-paired anonymous donation.33 Involving patient
groups in home-based education programs is another possible solution. By delivering an edu-
cational program in the patient’s home, it is possible to more effectively reach specific patient
groups and their family and friends about the option of living donation.34

33 Tanabe K. Japanese experience of ABO-incompatible living kidney transplantation. Transplantation 2007; 84(12 Suppl): S4–S7 ; Montgomery R.A., Gentry S.E.,
Marks W.H. et al. Domino paired kidney donation: A strategy to make best use of live non-directed donation. Lancet 2006; 368: 419–421

34 Rodrigue J.R., Cornell D.L., Lin J.K., Kaplan B., Howard R.J., Increasing Live Donor Kidney Transplantation: A Randomized Controlled Trial of a Home-Based
Educational Intervention. Am J Transplant. 2007;7(2):394-401

Improving the effectiveness of the organ trade prohibition in Europe

 RECOMMENDATIONS ON IDENTIFICATION, PROTECTION AND
ASSISTANCE OF (POTENTIAL) VICTIMS OF ORGAN TRAFFICKING

Earlier identification of (potential) victims of organ trafficking is crucial to ensure the

protection of rights of victims and to prevent the trafficking in the case of potential victims. It
is also very important in ensuring a successful prosecution of the traffickers. 19
In the last years, the majority of European countries have made important progress in
identifying and assisting victims of trafficking in human beings by implementing local referral
mechanisms.
However, it looks like these systems are more efficient in case of victims of sexual, labor and
children exploitation. Identification of victims of trafficking with purpose of organ removal is
relatively new issue in the global context of trafficking. Most of the analyzed data faced that
the number of identified victims of organ trafficking represent a small part of the number of
actual victims. Many of the victims are identified long after the episode of trafficking.
The self-identification is very difficult in cases of organ trafficking, because of the consent for
organ commercialization given by the victim. In addition, there are many barriers for victims
to go forward; fear, shame, lack of information about the possibilities of assistance and how to
get assistance, etc.

Recommendations to increase the earlier identification of victims of organ

trafficking:

 The National Authorities and the NGO-s involved in identification of organ trafficking
victims should implement the pro-active approach of identification process. Efforts
should be focused on rural and remote areas.
 The range of actors participating in the identification process should be expanded by
involving the family doctors, the transplant coordinators and other medical staff involved
in organ donation process.
 Specific trainings and guidelines dedicated to identification methodology should be
elaborated and incorporated into existing training modules. Early identification requires
training on a regular basis of all actors likely to come into contact with (potential)
trafficked persons.
 Hot-lines dedicated to organ donation and transplantation should be set up.
 Regular national info campaigns on organ trafficking.
 Efficient mechanism for collecting data on organ trafficking victims should be
implemented.
 More research in the field should be encouraged in order to develop more effective
approaches and methods of identification of victims.

Once the person has been identified as victim of organ trafficking she/he has the right to
receive protection and assistance - unconditional of cooperation with law enforcement bodies.

International instruments indicate a minimum standard of assistance measures which must be

ensured to trafficked persons. However, the states should ensure to any trafficked person the
assistance measures which are appropriate, taking into account the individual needs of the
person involved and the type of exploitation. The types of assistance made available to any
trafficked persons should be adequate to help them in their physical and psycho-social

Improving the effectiveness of the organ trade prohibition in Europe

recovery. It is known that the organ trafficking can lead to serious and long time negative
health consequences. So, the assistance should aim to prevent the health damage in time.

According to the Article 11 of Council of Europe Convention on Action against Trafficking in

Human Beings, each Party shall protect the private life and identity of victims. Personal data
regarding them shall be stored and used in conformity with the conditions provided for by the 20
Convention for the Protection of Individuals with regard to Automatic Processing of Personal
Data. Each Party shall consider adopting, in accordance with Article 10 of the Convention for
the Protection of Human Rights and Fundamental Freedoms as interpreted by the European
Court of Human Rights, measures aimed at encouraging the media to protect the private life
and identity of victims through self-regulation or through regulatory or co regulatory
measures.

Although rare, but there are still cases when private data on victims of organ trafficking appear
(ex. place of residence of victim) in mass-media articles. Newspapers also often offer a
superficial look at human trafficking, put it in a general context, and do not provide enough
information about solutions for people at risk. Revealing of victims’ identity publicly can have
many negative consequences, like increasing their shame and making it more difficult to
identify and reintegrate into society, as well as putting victims at risk from their traffickers.
Journalists should exercise their professional duties with utmost care and responsibility,
avoiding publishing any indices or personal information about victims. Mass media should
became an efficient instrument to prevent the organ trafficking and to educate the general
public.

Recommendations on protection and assistance of victims of organ trafficking

 Protection of victims should be a continuous process, and a priority for all actors involved
in anti-trafficking activities.
 The rights to assistance and protection should be free and not conditioned by the victim’s
consent to cooperate with law enforcement bodies.
 Standard operating procedures concerning the protection of victims should form a part of
any memorandum of understanding between international and non-governmental
organisation and law enforcement agencies.
 Training models for journalists should be developed and implemented on regular basis
focusing on the strategies to prevent the trafficking and protect the victims.
 Assistance of victims of organ trafficking should include accommodation, counseling and
information, legal assistance, health care, psychological services, vocational training,
employment opportunities, and protective measures.
 Long term medical follow-up should be ensured to victims of organ trafficking in order to
identify, report and manage any negative consequences that may result from the illegal
donation.

FINAL CONCLUSIONS

Improving the effectiveness of the organ trade prohibition in Europe

During the two years of the project, despite methodological difficulties, several cases of organ
trafficking, organ trade and milder alteration from the prohibition of the financial gain were
identified, analyzed and categorized. In our studies we used the methods of the legal analysis
of laws, court cases and cases reported in the media. We do not claim theses cases are in any
degree representative or complete but even from a limited number of cases different patterns
of right violation could be mapped. 21
In the cases that we analyzed it seems that weak infrastructure of organ transplantation and
lack of legal enforcement together with socio-economic reasons make some societies more
vulnerable and more targeted to organ trafficking.
The number of organ donations and transplantations has grown steadily across the EU and
thousands of lives are saved every year through this medical procedure. However, there are
also many problems in this sector. The level of organ donation does not come close to meeting
the demand, and nearly 10 people die every day in Europe while waiting for an organ. There are
wide variations between states in organ donation rates, ranging from 34.6 donations per one
million people in Spain to 6 per one million people in Greece, and the exchange of organs even
between Member States is not common practice. When it comes to quality and safety
requirements for organ donation and transplantation, there are large discrepancies between
the European Member States, while the organizational approach to transplantation varies from
country to country, leading to uneven standards across the EU.
These symptoms refer to the structural problems and problems in communication and not
necessarily the lack of market forces in organ transplantation. When regulation and organiza-
tion failed that market was evoked as a magic method. If organ selling will be introduced per-
haps less rich people and more poor will die on the waiting list but it will certainly create more
ethical hazards than good. I do not want to exclude organ selling as an alternative in future but
I think that health care systems and related infrastructure did not do everything to
communicate the needs of the potential recipients.
We agree with David Price who stated seven years ago “we are experiencing an unprece-dented
degree of biological interdependence between citizens, both directly through therapeu-tic
organ, tissue and fluid transfer, and indirectly through the fruits of research and commer-cial
development of tissues and cells...”35
Organs transplantation despite its relatively long history it should be regarded still as an ir-
regular treatment as it provides link between at least two individuals and the treatment serves
the health benefit only to one of them. That is the reason why coercive consent may lead to the
exploitation of the donor.
Moreover, organ transplantation is the only medical treatment that requires the participation
of society. Transparent system of registration laws, organized health care system good infra-
structure and co-passion is needed to run a successful model.

35 David Price (2000) Legal and Ethical Aspects of Organ Transplantation Cambridge University Press, Cambridge pp. 466.

Improving the effectiveness of the organ trade prohibition in Europe