Organ transplantation surgery has saved countless lives since its advent in the 1950s. As the techniques and technologies used in transplantation medicine improve, positive outcomes for donors and recipients are increasing. Demand for this treatment, however, far exceeds organ availability. It is estimated that legal transplants performed cover the needs of only 10% of all patients on waiting lists worldwide. As a result, thousands of people die every year waiting for this procedure.
The desperate need for organ transplantation surgeries has given rise to a lucrative, transnational criminal enterprise that enables organ seekers to purchase organs from donors. This enterprise, commonly referred to as organ trafficking, is a global phenomenon. Even though it is illegal in most countries, some estimates indicate that trafficked organs account for up to 10% of organ transplants performed around the world, with profits conservatively estimated to be between US$840 million to US$1.7 billion annually.
Illegally trafficked organs are very expensive. According to some reports, the cost of a kidney, the most commonly trafficked organ, can range from US$50,000 to US$120,000. Thus, purchasers are normally wealthy persons from developed nations such as Canada. Because the purchase is generally conducted through a vast network that includes a broker who acts as an intermediary between the organ buyer and seller, a local recruiter, as well as medical professionals and local hospitals performing the illicit organ removal, very little money is left for the “donor.” Victims are commonly from poor and vulnerable populations in developing countries. Many are reported to have been misled, coerced or otherwise forced into selling their organs.
While organ trafficking is an internationally recognized problem, and attempts to prevent and prohibit it have experienced limited success, this underground crime remains a pervasive problem in many parts of the world. Part of the challenge is that many countries, including Canada, do not explicitly prohibit travelling abroad for organ transplantation surgeries that have been organized through illicit means. Thus far, legislative attempts in Canada to strengthen federal laws relating to organ trafficking have been unsuccessful.
This Background Paper provides an overview of organ trafficking and Canada’s involvement in this illicit activity. It identifies key terms; lays out some of the main issues; and summarizes actions taken by the international community, as well as Canada, to combat organ trafficking.
A global shortage of organs for transplantation has given rise to a lucrative trade in trafficking organs or trafficking in persons for the purpose of organ transplantation.1 These practices, conventionally referred to as organ trafficking, are prohibited by international law as part of a general prohibition on human trafficking.2 Governmental and non-governmental organizations, including medical associations, have agreed in an official declaration that this prohibition includes any transplantation where the organ donor receives financial gain or comparable advantage from the transaction.3
Organ trafficking has become a global problem. Estimates indicate that trafficked organs account for up to 10% of organ transplants performed around the world, with profits conservatively estimated at US$840 million to US$1.7 billion annually.4 Increasingly, in an effort to exploit the gap between the supply and demand for organs, criminal organizations that traffic in human beings are expanding their practice to include organ trafficking.5
Over the past several decades, over 100 countries have passed legislation banning or strengthening existing laws prohibiting the trade in organs.6 Additionally, several governmental and professional bodies have advanced initiatives to regulate domestic and international organ transplantation and to prevent organ trafficking.7 Taken together, these initiatives propose professional, regulatory and international law solutions to address an increasingly complex global criminal enterprise.
This Background Paper identifies key terms and elements of the illegal practice of organ trafficking and summarizes the actions that the international community and Canada have been taking to combat the practice.
The following definitions include some of the most commonly used terms in the literature on organ transplantation and organ trafficking:8
the recruitment, transportation, transfer, harbouring, or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of the removal of organs.13
The Declaration of Istanbul on Organ Trafficking and Transplant Tourism (Declaration of Istanbul), widely recognized as an important guide for governmental and professional bodies in the field of transplantation, also distinguishes between travel for transplantation and “transplant tourism.” Travel for transplantation becomes transplant tourism if it
involves trafficking in persons for the purpose of organ removal or trafficking in human organs, or if the resources (organs, professionals and transplant centres) devoted to providing transplants to non-resident patients undermine the country’s ability to provide transplant services for its own population.17
Transplant tourism includes, for example, a patient travelling from Canada to another country to obtain a kidney commercially, or receiving an organ from a foreign donor outside of an officially regulated bilateral or multilateral organ-sharing program.18 By contrast, an example of proper travel for transplantation would be a recipient having dual citizenship in their country of residence and the destination country, and wishing to undergo transplantation from a live donor who is a relative in the destination country.19
Since its advent in the 1950s, organ transplantation as treatment for patients with terminal organ failure has become increasingly common across the globe.20 Continuous advances in medical technology and transplantation medicine have led to an increase in the demand for organs.21 However, demand for organs far exceeds the supply. It is estimated that the current number of legal transplants performed covers the needs of only 10% of all patients on waiting lists worldwide.22 The shortage of available organs has prompted countries to develop procedures and systems to increase supply, mainly through the improvement, expansion and promotion of deceased donation programs. This alone, however, “is not enough to fill the gap between demand and supply of organs.”23
As the demand for organs outpaces the supply, transplant commercialism and organ trafficking, both of which involve the illegal buying and selling of organs, is increasing. This trend has been observed despite the fact that almost all countries in the world prohibit compensated organ donation, a practice widely viewed as “unethical and exploitative” and harming “poor and powerless people.”24 The WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation (discussed in section 4.3 of this Background Paper) permit compensation for the costs of making donations (including medical expenses and lost earnings for live donors), but prohibit payment for organs, which is “likely to take unfair advantage of the poorest and most vulnerable groups, undermines altruistic donation, and leads to profiteering and human trafficking.”25
Consequently, organs have become a valuable and profitable black-market commodity involving transnational crime syndicates operating “highly organized” networks across national borders.26 According to the United Nations Office on Drugs and Crime (UNODC), the illicit practices involved in the illegal organ trade remain among the most difficult crimes to detect. As a result, awareness of the crime among criminal justice practitioners, law enforcement and policymakers remains low, and enforcement of the crime is generally not a priority, although some jurisdictions have improved on this front.27 This lack of awareness exists in spite of the sheer number of actors involved in the trade in illicit organs, including the broker who acts as the intermediary between the organ buyer and seller, the local recruiter who identifies vulnerable people willing to sell their organs, and the medical professionals and local hospitals performing the illicit organ removal.28
As noted in the introduction to this Background Paper, organ trafficking is estimated to generate between US$840 million and US$1.7 billion in illegal profits per year. A 2017 report by Global Financial Integrity estimates that in 2014, approximately 12,000 illegal transplantations were performed around the globe, of which two thirds involved kidneys.29 The same report estimates that an organ buyer can pay anywhere from US$50,000 to US$120,000 for a kidney on the black market. Meanwhile, vendors on average receive less than 10% of the buyer’s payment, with the majority going to traffickers and other intermediaries.30 By way of comparison with the cost of sanctioned kidney transplantation operations, in the United States, the estimated average billed charge for the transplantation of a kidney is US$442,500, including pre- and post-operative care.31 In Canada, in 2019, the first-year cost of a transplant to the health care system was estimated to be $66,000. Costs related to the transplant in subsequent years are estimated to be $23,000 per year.32
Cases of organ trafficking are reported all over the world. According to UNODC, trafficking for the removal of organs was detected in 25 countries between 2003 and 2016, mainly in North Africa and the Middle East, but cases have been noted in Western, Central and Eastern Europe, as well as in Central and South America.33 Other commentators have noted that those who are most commonly targeted for organ trafficking, commercialization or transplant tourism appear to be vulnerable and impoverished people in China, Egypt, India, Iraq, Pakistan and the Philippines, as well as countries in Central and South America and in Eastern Europe. Victims are predominantly male and between 20 and 40 years of age. They are often misled about the nature and medical consequences of the transplantation procedure, and numerous studies reveal that nearly all organ sellers regret having done so. Once recruited, victims having doubts are often coerced into going through with the procedure by violence or intimidation.34
On the demand side, the practice of travelling abroad for a commercial transplant has been reported among nationals of Australia, Canada, Japan, South Korea, the United States, and countries in the Middle East and Western Europe. Organ recipients travelling abroad typically do so out of desperation due to declining health and poor prospects for obtaining a legitimate organ transplant in their home country. Recipients may learn of transplant tourism opportunities by word-of-mouth or online advertisements, among other sources.35
Commercial transplants performed abroad are dangerous not only for the donors but also the recipients, possibly because a regulatory framework to ensure safety of the procedure and organ viability is lacking. A study conducted between 1998 and 2013 at a Toronto hospital found that patients who had a kidney transplant outside Canada were three to four times as likely to die or lose the organ as those who received a kidney transplant in Canada and were also at greater risk of returning home with diseases like hepatitis or tuberculosis, among other complications.36
Organ trafficking is global in scope and targets typical donor and recipient profiles. Donor countries include countries in South America, Eastern Europe, and South and East Asia. Recipient countries include Canada, the United States, Australia and countries in the Middle East and East Asia. The typical organ donor is a 28-year-old male with an average annual income of $480, while the typical organ recipient is a 48-year-old male with an average annual income of $53,000.37
International organizations, governments and professional associations around the world have agreed on several major international initiatives to regulate organ transplantation and combat organ trafficking. What follows are short descriptions of three major international initiatives.38
On 13 May 2002 Canada ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime (Palermo Protocol).39 It is the first global legally binding instrument with an agreed definition of trafficking in persons, which is defined to include trafficking in persons for the purpose of removing their organs:
“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.40
The Declaration of Istanbul is the first international declaration to distinguish between transplant tourism and travel for transplantation while also encouraging direct, specific action from states. It was first adopted in 2008 at an international meeting organized by the Transplantation Society and the International Society of Nephrology. The Declaration of Istanbul Custodian Group (DICG) was established in 2010 to oversee the dissemination and endorsement of the document. The DICG published a new edition of the declaration in 2018 following public consultations with relevant stakeholders. The Declaration of Istanbul is intended to be a guidance document for policymakers and health professionals rather than a legally binding instrument. Numerous national and international medical societies and governmental bodies involved in organ transplantation have endorsed (i.e., agreed to uphold the principles of) the declaration, including several from Canada.41 According to its preamble, the Declaration of Istanbul
expresses the determination of donation and transplant professionals and their colleagues in related fields that the benefits of transplantation be maximized and shared equitably with those in need, without reliance on unethical and exploitative practices that have harmed poor and powerless persons around the world.42
The Declaration of Istanbul sets out 11 principles.43 Some focus on prevention, such as Principle 1, which calls on governments to “develop and implement ethically and clinically sound programs for the prevention and treatment of organ failure”44 and Principle 6, which asks governments to ensure transparency and accountability in organ donation, allocation and transplantation practices. Others focus on prohibition, including calling for the criminalization of organ trafficking and trafficking in persons for the purpose of organ removal (Principle 3) and the implementation of strategies to discourage or prevent transplant tourism (Principle 10). The principles also underscore the importance of equitable access to donation and transplantation services (Principle 7) and the need for countries to strive to achieve self-sufficiency in organ donation and transplantation (Principle 11).
The WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation (WHO Guiding Principles) build on previous WHO resolutions that expressed the WHO’s “concern over commercial trade in organs and the need for global standards for transplantation.”45 Its 11 guiding principles are aimed at ensuring that states provide an “orderly, ethical and acceptable framework for the acquisition and transplantation”46 of organs, including
Overall, the WHO Guiding Principles provide a road map for member states to establish ethically sound transplantation programs. However, since the principles are not legally binding, they lack an enforcement provision or mechanism and do not require member states to report on their implementation of the recommendations. While the WHO Guiding Principles do not address organ trafficking directly, they do provide clear standards by which countries can address the supply side of organ transplantation.
The Council of Europe Convention against Trafficking in Human Organs (Council of Europe Convention) opened for signature on 25 March 2015 and entered into force on 1 March 2018 upon receiving sufficient ratifications.53 As of October 2020, 10 states had ratified the Council of Europe Convention: Albania, Croatia, Czech Republic, Latvia, Malta, Moldova, Montenegro, Norway, Portugal and Switzerland.54 The Council of Europe Convention is the first legally binding international instrument devoted solely to organ trafficking and is also open to Canada for ratification. According to Article 1, the purposes of the Council of Europe Convention are as follows:
Article 23 also establishes a committee of the parties to the Council of Europe Convention to monitor its implementation.
On 8 September 2017, the United Nations General Assembly adopted resolution 71/322, entitled 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.56 The resolution urges member states to, among other measures,
As is the case in other countries, the demand for organs in Canada significantly outpaces supply. In 2019, over 4,300 people were waiting for organ transplants, 3,014 organs were transplanted, and 249 people died waiting for a transplant.60 Canada ranked 19th among 70 countries in 2019 for the deceased organ donor rate, with a rate of 20.56 per million persons (PMP).61 By comparison, the deceased organ donor rate of the top-ranked country, Spain, was 49 PMP. For living organ donors, Canada ranked 16th in 2019, with a rate of 14.98 PMP. Turkey ranked first the same year, with 53.02 PMP.62
Canada is one of the top countries of origin for patients seeking organs abroad.63 Currently, Canada does not have a law that bans Canadians from travelling abroad to receive a transplant, also known as transplant tourism.64 However, as will be explained in section 5.1.1 of this Background Paper, the Criminal Code (the Code) does prohibit Canadian citizens and permanent residents from exploiting someone outside Canada to have an organ or tissue removed.
Under the Code,65 trafficking in persons for the purpose of organ removal is prohibited. Sections 279.01 to 279.03 criminalize trafficking in persons and related offences, such as receiving a material benefit from trafficking in persons or withholding travel documents to facilitate trafficking in persons. According to section 279.01(1),
[e]very person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence.
“Exploitation” is defined under section 279.04(1) of the Code, which states:
[A] person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.
Section 279.04(3) of the Code clarifies that trafficking in persons for the purpose of organ removal is included in the definition of exploitation:
For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.
Trafficking in persons is an indictable offence. If the perpetrator kidnaps, commits an aggravated assault or sexual assault, or causes the victim’s death during the commission of the offence, the offence is punishable by a maximum term of life imprisonment and a mandatory minimum sentence of five years (six years if the victim was under 18). In all other cases, trafficking in persons is punishable by a maximum of 14 years and a mandatory minimum of four years’ imprisonment (five years if the victim was under 18).
In addition, according to section 7(4.11) of the Code, any Canadian citizen or permanent resident who commits an offence listed in sections 279.01 to 279.03 outside Canada “shall be deemed to commit that [offence] in Canada.” This section of the Code ensures that the offence of trafficking in persons applies extraterritorially.
There have been several attempts in the last 10 years to amend the Code to deal more explicitly with the trafficking of human organs and other body parts through private members’ bills in the Senate and the House of Commons.66 For example, Bill S-240, An Act to amend the Criminal Code and the Immigration and Refugee Protection Act (trafficking in human organs) died on the Order Paper at the dissolution of the 42nd Parliament, having passed third reading in the House of Commons. Sponsored by Senator Salma Ataullahjan, Bill S-240 would have amended the Code to add a specific provision criminalizing trafficking in human organs, including the removal of organs without the person’s informed consent or for financial consideration, by anyone in Canada or by a Canadian citizen or permanent resident outside Canada. These offences would have been punishable by a maximum of 14 years’ imprisonment. The bill would also have established an organ transplant registry to help authorities identify instances of organ trafficking. Finally, the bill would have amended the Immigration and Refugee Protection Act to make a permanent resident or foreign national inadmissible to Canada if they had engaged in organ trafficking.
Most countries’ legislation banning organ trafficking has focused on organ sales within the country’s jurisdiction. This approach does not impose liability for nationals engaging in transplant tourism abroad. Several countries, however, have enacted laws to discourage or prevent their nationals from travelling abroad for organs for transplantation. Israel, for example, prohibits health insurance companies from reimbursing the medical expenses of patients who travel abroad to receive transplants while providing for full reimbursement of legitimate expenses associated with organ donation.67 Legislation in Taiwan stipulates that patients who receive organ transplants abroad must provide certain information in writing regarding the transplant they received in order to be eligible for medical care in Taiwan.68
Destination countries for transplant tourism have also implemented laws to curb this practice, with some success. For example, legislation enacted by the Philippines in 2009 prohibiting living local donors from providing organs for transplantation to foreign nationals led to a significant decrease in transplant tourism to the country, from 531 cases in 2007 to two in 2011.69 India enacted legislation in 1994 that restricted living organ donations to related individuals in order to discourage transplant tourism. However, the law permitted non-related living organ donations in “altruistic” cases. As a result, organ traffickers disguised illegal organ transactions as voluntary donations, leading the Indian government to impose harsher penalties for, and increased oversight of, the organ trade.70
Iran is the only country in the world that allows living paid kidney donation. Prospective donors in Iran must obtain approval from the government. If approved, they receive US$2,000 to US$5,000 in compensation from recipients, in addition to receiving one year of free health insurance and a US$1,200 government subsidy.71 The costs of the transplant are paid by the government with no incentives allowed to transplantation teams. Regulations aim to prevent kidney transplant tourism by requiring that both the donor and recipient be Iranian. The Iranian Society of Organ Transplantation is tasked with monitoring all living unrelated kidney donations for ethical violations.72
Despite the program’s apparent successes and robust regulations, most kidney vendors in Iran fall below the poverty line, highlighting the systemic inequality between donors and recipients in the organ trade even when made legal.73 Furthermore, many sellers still turn to the black market to sell their kidneys to buyers willing to pay thousands more than the government offers.74
As previously stated, the root cause of organ trafficking is the significant lack of organs available for transplantation via legitimate means. Following the Third WHO Global Consultation on Organ Donation and Transplantation in 2011, participants, including government representatives and medical professionals, issued the Madrid Resolution on Organ Donation and Transplantation, which calls on governments to pursue “self-sufficiency in organs for transplantation” as “it is the only safeguard against the temptation of yielding to trade in human organs.”75 Self-sufficiency requires not only strategies aimed at increasing the availability of organs but also those intended to prevent diseases leading to organ failure.76
With respect to human trafficking for the purpose of organ removal specifically, the Routledge Handbook of Human Trafficking states that essential prevention measures include
the establishment of a regulatory framework and the development of professional guidelines for the comprehensive screening of prospective living donors, particularly from the psycho-social perspective, so as to rule out coercion, fraud, deception or abuse of a position of vulnerability. In addition, incorporating a living donor advocate into transplant programmes should become a standard practice. Living donation programmes should pay special attention to non-resident living donors – for whom appropriate psycho-social screening may be particularly challenging. Protocols in place should be able to differentiate between proper travel for transplantation and situations where the apparently willing prospective donor may be subject to exploitation. Transplantation practises should be developed within highly regulated and transparent systems subject to strict oversight. Similarly, transplant centres should be subject to specific authorization and regular audits.77
The handbook also highlights the need for states to raise awareness of the illegal organ trade and to conduct outreach to populations at risk of being trafficked for their organs. It further maintains that states should equip health care professionals and public officials dealing with potential organ donors and recipients with adequate information aimed at preventing and combatting the illicit organ trade.78
Physicians have also been identified as playing “a pivotal role in discouraging” transplant tourism in source countries such as Canada, “particularly if they are supported by law and policy reform.”79 For example, physicians could advise patients considering transplant tourism of the medical risks associated with receiving a transplant abroad, as well as the harms to the organ donor and illegality of the organ trade.80
Organ trafficking is a global issue that persists largely undetected despite netting significant profits for organized crime groups. All countries are affected – the victims of organ trafficking are typically found among poor and vulnerable populations in developing countries, while the recipients of illicit organs are usually from wealthier countries such as Canada. Organ trafficking is fuelled by a significant lack of organs available by legitimate means in virtually all jurisdictions, including in Canada where patients can wait years for a transplant. Legislative attempts in Canada to strengthen federal laws relating to organ trafficking have been unsuccessful thus far. While some international and domestic initiatives to prevent and prohibit organ trafficking have had positive results, this underground crime remains a pervasive worldwide problem.
(1.74 MB, 149 pages), Vienna, 2015, p. 10. [ Return to text ] (212 KB, 4 pages) [Declaration of Istanbul – 2018 Edition]. [ Return to text ] (5.76 MB, 166 pages), Global Financial Integrity, March 2017, p. 29. [ Return to text ] (84 KB, 9 pages), 63rd World Health Assembly, Resolution WHA63.22, May 2010. [ Return to text ] (249 KB, 10 pages), p. 2 [ Return to text ] (72 KB, 15 pages), Geneva, November 2009, p. 14. [ Return to text ] (1.48 MB, 75 pages), July 2015, p. 18. [ Return to text ] (12.00 MB, 90 pages), Vienna, 2018, pp. 30–31. [ Return to text ] (1.48 MB, 75 pages), p. 19. [ Return to text ] (40 KB, 4 pages), January 2008; United Nations Educational, Scientific and Cultural Organization, “Universal Declaration on Bioethics and Human Rights,” Legal Instruments, 19 October 2005; and European Union, “Directive 2010/53/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,” Consolidated version, EUR-Lex, 6 August 2010. See also UNODC (2015), pp. 14–23. [ Return to text ] (168 KB, 5 pages),” The Lancet, Vol. 378, 15 October 2011, p. 1417. [ Return to text ]
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