INTRODUCTION
Organ trafficking is fundamentally capitalism of the human body and is plagued by socioeconomic and racial discrimination. A process that has been prevalent throughout history has undergone an exponential increase in frequency owing to improving medical and transportation capabilities. It is critical to analyze the origin, definition, modes of occurrence of organ trafficking, and the varying regulations imposed globally to fully understand the impact on society and how it can be collectively addressed.
Organ trafficking is the illegal trade of people with the intention of ‘organ removal’. As a lesser acknowledged subset of human trafficking, it begins to dominate international markets and has significant impacts on numerous social phenomena like threatening immigration of migrants in poverty. We believe one of the primary reasons why organ trafficking has less attention is due to its ethically ambiguous nature and lack of preventive regulation; for a question worth considering is: If the movement is consensual and per human rights regulations, is saving a life worth this setback in ‘national human capital resources’?
ORIGIN & MODES OF OCCURRENCE OF ORGAN TRAFFICKING
The origins of human trafficking can be traced far and deep into modern history and are unmistakably entangled with socioeconomic disparity. A study conducted by the European Parliament titled ‘Trafficking in human organs’ delineates the first reports, dating back to the 1980s, outlining the sale of kidneys ‘by poverty-stricken Indian citizens’ to foreign agents, specifically from the Middle East. Much like then, trends today continue to point unidirectionally from historically privileged to disadvantaged social groups.
According to the study, ‘The general term “trafficking in organs” covers a whole range of illicit activities aimed at commercializing human organs and tissues that are needed for therapeutic transplantation.’ With only about 15% of all patients on the waiting list receiving successful transplant solutions, the shortage is certainly a leading cause of the process. For the sake of a formal definition, we cite Article 3A of the Palermo Protocol to the UN Convention against Transnational Organized Crime: ‘“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.’
Most organ trafficking can be attributed to two mechanisms namely ‘Trafficking in Human Beings for the purpose of Organ Removal (THBOR)’ and ‘Trafficking in Organs, Tissues and Cells (OTC)’ as highlighted in the study prepared by the Policy Department of the Directorate-General for External Policies of the Union. THBOR is defined as ‘the trafficking of persons with the intent to remove their organs’, whereas OTC is defined as ‘commercial transactions with human body parts that have been removed from living or deceased persons.’ Furthermore, under OTC, organ trafficking has several modes of occurrence. The two chief means include buying and selling organs from those who are living and stealing organs from those who are deceased. However, ‘this form of trafficking does not fall under the definition of trafficking in persons, as described in the UN Palermo Protocol’ which has been highlighted above. Furthermore, it does not qualify as a crime under trafficking of persons, instead, it ‘falls under the universal prohibition of gaining profit from the human body and its parts (commodification and commercialisation) which is prohibited and punishable under international conventions, as well as under national transplant legislation.’
However, penal codes internationally suggest that penalties for human trafficking are more severe than those for profiting from the human body (such as OTC). Due to the lack of an accurate and uniform definition of OTC trafficking, a universally accepted legally binding instrument comprising a combination of THBOR and OTC elements must be drafted. The existence of this legal code is vital to ensure a decline in trafficking of all types.
COMPARATIVE ANALYSIS OF NATIONAL POLICIES ON ORGAN TRAFFICKING
To fully comprehend the societal consequences of complex social evils like organ trafficking, it is necessary to create a comparison between nations with distinctive policies around the same.
Iran is the only nation in the world that allows the monetary sale and purchase of organs. In the late 1900s, primarily owing to a lack of infrastructure, the nation legalized living non-related donation (LNRD). It is also important to note that Iran has placed regulations around the nationality of those engaging in organ trade such that the recipient has to be Iranian. The governmental provisions established by Iran for donation signups can range from rewarding gifts given to the donor by the recipient (or charities if the recipient is not financially secure) to providing subsidized essential immunosuppressive drugs and health insurance schemes. The most prominent result of an unregulated system is the gradual increase in the percentage of donors who are socio-economically disadvantaged. Given the state of national provisions, it also becomes difficult to undertake follow-ups with the health of organ donors.
On the other hand, the policies in two of the most populated countries in the world attempt to curb organ trafficking. While China has illegalized monetary organ trade, it also boasts the world’s largest organ transplant program. Several statistics indicate that over 20,000 transplants were performed in 2006 alone while mere hundreds (approximately 130) signed up for organ transplants between 2003-2009. This indicates a phenomenally huge illegal market for organ trade. The ‘alleged organ harvesting’ of the Falun Gong practitioners and Uyghurs has attracted international attention and condemnation.
India has an interesting history of policy revolving around health and human trafficking. Up until recent times, the right to health was not guaranteed by the Constitution. Article 21 of the Constitution now provides each citizen with the right to health and thereby completely illegalizes human trafficking. Further, the Transplantation of Human Organs Act of 1994 provides an institutional provision which facilitates organs for those in need, sourced from consensual and often family/known donors. India Today, a national magazine, in an article titled ‘Trade in organs taken from live donors assumes alarming proportions in India’, reported that the country ‘was the largest exporter of skeletons sending out something like 10,000 frames annually.’ Furthermore, with regards to blood, ‘with over 5 million litres being purchased from professional donors annually, turnover of blood banks in the country has crossed Rs 100 crore – perhaps the largest in the world.’
A significant contributor to this is that organ donation is often seen as a way out of crippling poverty, lack of basic resources, and debt. The presence of numerous middlemen makes regulation difficult while also decreasing the donor’s final compensation. The majority of the victims of this are urban poor or rural areas which are devoid of educational resources to fight for their rights or monetary resources to comfortably sustain themselves; thus perpetuating a destructively vicious cycle.
CONCLUSION
Birth is laborious, education is intensive, and healthcare is expensive and while the value of an individual life encompasses each of these, the value of life far exceeds the total of its components. The fundamental value of life is central to the Constitution and the existence of humanity as a whole. While there have been extensive meta-discussions about the value of life, the value of its medical components escapes without attention. The parts of each person’s body are his own.
This raises the important question if an individual has the right to use their body in a way that is per the Constitution and more specifically, whether they can sell their organs for profit. It is critical to recognize that each person’s body is his own and the law doesn’t seek to infringe on this foundational provision. However, it is the responsibility of the state to ensure that no citizen is in a position where they have to sell their body for profit. The solution to this problem doesn’t lie in regulatory provisions but in fundamental systemic changes like affordable healthcare, quality state-funded education, and accessible employment opportunities. This must, however, be supplemented with a strong regulatory legal code that strictly punishes anyone that provides or engages, but not the victims, in organ trafficking.
This analysis of organ trafficking emphasizes a critical feature of law. The existence of legal provisions transcends criminal justice or financial protection, it secures the fundamental rights of each of us as citizens of this nation and of the world. It confers order to the chaos of man and enables transformational productivity. For any such system governing a dynamic subject, it is imperative to be adaptive to feedback and to be open to positive change; positive change rooted in the ideologies that we live for.
Author(s) Name: Tanishka Khokhar
