Print
See related documents
A. Draft resolution
(open)
Report | Doc. 15029 | 09 January 2020
Organ transplant tourism
Committee on Social Affairs, Health and Sustainable Development
Summary
Organ transplant tourism is one of the most lucrative illegal activities worldwide, making it extremely difficult to eradicate. While the number of transplants performed worldwide has been steadily increasing, the need for transplants is also increasing. Demand far outstrips supply.
The disparity between the need for and supply of organs prompts some patients to try to purchase an illicitly-obtained organ. Despite a solid legal framework at Council of Europe and international level, organ transplant tourism subsists, including in Europe and in China.
The Assembly should thus recommend that member States:
- sign, ratify and implement all relevant global and Council of Europe Conventions and invite all states interested in joining the fight to do likewise;
- develop and improve existing transplant programmes;
- develop and implement population-based prevention strategies to prevent (and treat) organ failure;
- improve transplant oversight through intergovernmental efforts, in Europe and globally;
- effectively combat trafficking in human beings for the purpose of organ removal and trafficking in organs;
- exercise particular caution when co-operating with the China Organ Transplant Response System and the Red Cross Society of China.
A. Draft resolution 
(open)1. Organ transplant tourism is
one of the most lucrative illegal activities worldwide, making it
extremely difficult to eradicate. This is because organ transplantation
is the best – and frequently the only – lifesaving treatment for
end-stage organ failure. While the number of transplants performed
worldwide has been steadily increasing, the need for transplants
is also increasing. Demand far outstrips supply.
2. The disparity between the need for and supply of organs prompts
some patients to try to purchase an illicitly obtained organ, often
involving travelling abroad to countries where laws prohibiting
organ sales are poorly enforced or marred by loopholes. This practice
has been consistently and uniformly condemned by the Council of
Europe, the World Health Organization (WHO) and by professional
organisations such as the World Medical Association and the Transplantation
Society.
3. The Declaration of Istanbul defines “organ transplant tourism”
as travel for transplantation involving: trafficking in persons
for the purpose of organ removal; organ trafficking; or when the
resources (organs, professionals and transplant centres) devoted
to providing transplants to non-residents undermine the country’s
ability to provide transplant services for its own population.
4. Both at global and at European level, widely-ratified Conventions
with effective monitoring mechanisms are in force which combat trafficking
in human beings including for the purpose of organ removal. The
Council of Europe has also elaborated the Convention against Trafficking
in Human Organs (CETS No. 216, 2015), which constitutes the only
international criminal law framework addressing organ trafficking.
It entered into force on 1 March 2018 but has, so far, only been
ratified by nine member States, and its Committee of the Parties
has yet to be established. The use of transplant resources that
undermines a country’s ability to provide transplant services for
its own population is not explicitly addressed by the above-mentioned
Conventions. The Council of Europe Convention for the protection
of Human Rights and Dignity of the Human Being with regard to the
Application of Biology and Medicine: Convention on Human Rights
and Biomedicine (ETS No. 164) and its Additional Protocol concerning
Transplantation of Organs and Tissues of Human Origin (ETS No. 186) establish
the principle that the human body and its parts shall not, as such,
give rise to financial gain.
5. Unfortunately, despite this solid legal framework, organ transplant
tourism subsists, including in Europe and in China, though its magnitude
is not well known. Organ transplant tourism may involve the use
of organs from deceased persons (who may not have given proper consent,
as in the case of executed prisoners in China, or whose organs were
properly donated but later diverted for illicit use by physicians
providing transplant services to patients who do not qualify to
receive them within national programs or at facilities that serve “transplant
tourists”) or, in its most pervasive and hideous form, from living
persons. Organ sellers often come from the poorest strata of society
(including migrants and refugees). They usually only co‑operate
because of their desperate financial situation and because they
are misled about the nature of the surgery and the consequences
of giving up an organ. Medical reports of the health status of returning
transplant tourists emphasise that transplant tourism frequently
also negatively affects the interests of the recipients, their families and
communities. Combined with the financial sacrifices that they have
made to obtain an organ, transplant tourists thus run a real risk
of being exploited themselves and of suffering severe health consequences.
The only profits made are by corrupted health professionals, middlemen,
and other criminals. However, these profits are huge and there is
often little risk of punishment.
6. A holistic approach is necessary to solve the problem of organ
transplant tourism. At its root, there is a need to close the gap
between the demand for and the supply of organs, in the face of
desperate people needing an organ whose number will only increase
in the future.
7. The Parliamentary Assembly thus recommends that member States
of the Council of Europe:
7.1. sign,
ratify and implement all relevant global and Council of Europe Conventions:
the Protocol to Prevent, Suppress and Punish Trafficking in Persons
Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime, the Council of
Europe’s Convention on Human Rights and Biomedicine and its Additional
Protocol concerning Transplantation of Organs and Tissues of Human
Origin, the Council of Europe Convention on Action against Trafficking in
Human Beings (CETS No. 197) and the Council of Europe Convention
against Trafficking in Human Organs;
7.2. develop and improve existing transplant programmes in
accordance with good practice examples, through professional education
and training and collaboration across countries, with the aim of
striving for national self-sufficiency in organ donation and transplantation:
this can involve establishing and resourcing National Transplant
Organisations, training critical care professionals in deceased donation
to maximise the detection of potential organ donors, appointing
transplant “donor co-ordinators” in every hospital with an intensive
care unit, and developing and optimising ethically-sound living
donation programmes;
7.3. develop and implement population-based prevention strategies
to prevent (and treat) organ failure in the first place by, for
example, encouraging a healthy lifestyle and providing universal healthcare;
7.4. improve transplant oversight through intergovernmental
efforts, in Europe and globally, by putting into place comprehensive
mechanisms of traceability for donors and recipients, including transnationally;
recording information about transnational transplant activities,
including by joining the International Network of National Focal
Points on Travel for Transplantation and providing information to
their International Database on Travel for Transplantation; enforcing
international referral systems before any travel for organ transplantation;
and informing and training health-care, judicial and other professionals
about their roles in recognising, preventing and combating organ
transplant tourism;
7.5. effectively combat trafficking in human beings for the
purpose of organ removal and trafficking in organs, including through
transnational and international co-operation, while ensuring adequate protection,
compensation and assistance of victims (as stipulated, inter alia,
in the Human Trafficking and Organ Trafficking Conventions), including
by closing legal loopholes and establishing persuasive legal sanctions,
increasing collaboration between monitoring bodies, professional
organisations, and law enforcement agencies, and strengthening partnerships
between global actors (e.g. UN Office on Drugs and Crime (UNODC),
Office of the UN High Commissioner for Refugees (HCR), WHO, Interpol), regional
actors (e.g. the Council of Europe, OSCE, Europol, Eurojust), professional
actors (e.g. World Medical Association, The Transplantation Society,
International Society of Nephrology), NGOs and others (e.g. the
Declaration of Istanbul Custodian Group).
8. In the light of the above, the Assembly believes that there
is an urgent need to strengthen the role of national parliaments
in tackling organ transplant tourism. It invites them to promote
public awareness, adopt relevant legislation and ratify international
legal instruments, and monitor their effective implementation.
9. In view of the global nature of the phenomenon of organ transplant
tourism, the Assembly invites all states interested in joining the
fight, but particularly Council of Europe observer states and the
states whose parliaments hold observer or partner for democracy
status with the Assembly, to do likewise and, in particular, to
accede to the relevant Council of Europe Conventions open to them.
10. Finally, the Assembly recommends that member States exercise
particular caution when co-operating with the China Organ Transplant
Response System and the Red Cross Society of China, in view of a
recent study casting doubt on the credibility of China’s organ transplant
reform.
B. Explanatory memorandum by Mr Stefan Schennach, rapporteur
(open)1. Introduction
1. Organ transplant tourism is
one of the most lucrative illegal activities worldwide, making it
extremely difficult to eradicate. On 18 October 2016, Ms Lotta Johnsson
Fornarve and 20 other Assembly members presented a motion for a
resolution on “Organ transplant tourism to China”. Based on a report
concluding that, in China, the source of most transplant organs
was the killing of prisoners of conscience (primarily practitioners of
the spiritual practice Falun Gong), the motion called for measures
to put an end to this practice.
2. This motion was referred to the Committee on Social Affairs,
Health and Sustainable Development for consultation on possible
follow-up. On 24 March 2017, the committee examined the motion and
agreed to prepare a report on the more general issue of organ transplant
tourism (including in China) and therefore to request that the Bureau
propose to the Assembly to refer the above-mentioned motion to it
for report. On 27 June 2017, Ms Liliane Maury Pasquier (Switzerland,
SOC) was appointed rapporteur and, following her election to the
Presidency of the Assembly, Ms Stella Kyriakides (Cyprus, EPP/CD)
was appointed as the new rapporteur on 17 September 2018.
3. At its meeting on 4 December 2018, the committee held an exchange
of views with Mr Kristof Van Assche, Research Professor in Health
Law and Kinship Studies, from the University of Antwerp (Belgium),
who
presented his expert memorandum on the subject.
On 28 February 2019, the Bureau
of the Assembly authorised the rapporteur to undertake a fact-finding
visit to Israel. I was appointed rapporteur on 2 October 2019 and
undertook a most interesting fact-finding visit to Israel on 10-12
November 2019, which I will present as a good practice example in
this report.
I hope that this report can be presented
to the Assembly jointly with the committee’s report on “Combating
trafficking in human tissues and cells”. 




2. Definitions, aim and scope of the report
4. Organ transplantation is the
best, and frequently the only, lifesaving treatment for end-stage
organ failure. While the number of transplants performed worldwide
has been steadily increasing, the need for transplants is also increasing.
Demand far outstrips supply: it is now estimated that only 5-6%
of those who need a transplant may get one.
The disparity between the need and
supply of organs prompts some patients to try to purchase an illicitly
obtained organ, often involving travelling abroad to countries where
laws prohibiting organ sales are poorly enforced or marred by loopholes.
This practice has been consistently and uniformly condemned by intergovernmental
organisations such as the World Health Organization (WHO) and the
Council of Europe, and by professional organisations such as the
World Medical Association and the Transplantation Society.

5. Indeed, the Council of Europe’s Convention on Human Rights
and Biomedicine (CETS No. 164) and its Additional Protocol concerning
Transplantation of Organs and Tissues of Human Origin (CETS No. 186), establish
the principle that the human body and its parts shall not, as such,
give rise to financial gain.
In a declaration
adopted on 24 June 2014, our committee reiterated the fundamental
importance of the principle of non-commercialisation for the protection
of human dignity. 


6. The Declaration of Istanbul
defines
“transplant tourism” as travel for transplantation involving: (a) trafficking in persons for the
purpose of organ removal; (b) organ
trafficking; or (c) use of
transplant resources that undermines the country’s ability to provide
transplant services for its own population.

7. It is important to underline, however, that not all travel
for transplantation is illegitimate. Patients may decide to travel
for personal or family reasons (e.g. better social or family support
post-transplantation in another country), for financial or medical
reasons (e.g. better or more affordable medical care in another country)
or in the context of transparent bilateral arrangements between
countries based on reciprocity or compassionate care. Ultimately,
ethical travel for transplantation – as opposed to transplant tourism
– should never entail organ trafficking, trafficking in persons
for the purpose of organ removal or reduce the ability of countries
of destination to cover the transplantation needs of their own patients.
8. (a) “Trafficking in
persons for the purpose of organ removal” occurs when, with the
aim of having a person’s organ removed, that person is recruited,
transported, transferred, harboured or received by making use 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.”
Since 2000, an international criminal
law framework addressing trafficking in persons for the purpose
of organ removal has been elaborated by the United Nations (Protocol
to the Convention against Transnational Organised Crime to Prevent,
Suppress and Punish Trafficking in Persons 2000), the Council of
Europe (Convention on Action against Trafficking in Human Beings 2005),
and the European Union (Directive 2011/36/EU). The great majority
of cases of transplant tourism involve organ sellers who have been
subjected to trafficking in persons. The Council of Europe Anti-Trafficking Convention
is in force in all Council of Europe member States (with the exception
of the Russian Federation) and in Belarus, and is equipped with
an effective monitoring mechanism, the Group of Experts on Action against
Trafficking in Human Beings (GRETA). 


9. (b) “Organ trafficking”
occurs when an organ has been illicitly removed, either because
it was removed without valid consent or authorisation or because
it was removed in exchange for financial gain to the donor or a
third person.
Any further acts
involving illicitly removed organs, such as the use, preparation,
preservation, storage, transportation, transfer, receipt, import
and export of the said organs, as well as the solicitation or recruitment
of donors or recipients for financial gain, or the “promising, offering
or giving of any undue advantage to” or “the request or receipt
of any undue advantage by,” healthcare professionals, public officials, or
persons who direct or work for private institutions “for the illicit
removal of organs or for the use of organs that have been illicitly
removed” are also considered organ trafficking. To solidify the
principle of non-commercialisation of the human body through criminal
sanctions and to overcome the limitations of the framework of trafficking
in persons, the Council of Europe elaborated the Convention against
Trafficking in Human Organs (2015), which constitutes the international
criminal law framework addressing organ trafficking. It entered
into force on 1 March 2018 but has, so far, only been ratified by
nine member States, and its Committee of Parties has yet to be established.

10. More specifically, this Convention allows for the prosecution
of transplant tourism in cases where the organ was removed from
a living person who had adequately consented (i.e. when no illegal
activities or means have been used with respect to a living donor)
but had been paid, or where the organ was illicitly removed from a
deceased person. Moreover, the framework on organ trafficking allows
easier prosecution of transplant tourism, because it does not require
proof that specific illicit means have been used to obtain a paid
organ transplant. The secretariat of the committee has prepared
a handbook for parliamentarians on the Convention,
in collaboration with the consultant
expert Mr Kristof Van Assche. An event to launch the handbook took
place during the October 2019 part-session of the Assembly, with
a view to raising parliamentarians’ awareness of the importance
of wider signature and ratification of the Convention
.


11. (c) In addition to cases
that constitute outright trafficking in persons or organ trafficking,
transplant tourism occurs when domestic transplant resources are
used to the benefit of foreigners to an extent that it undermines
the country's ability to provide transplant services for its own
population. This may, for instance, involve the allocation of organs
from deceased donors to foreigners with the subsequent impact on
the national waiting list and waiting time to receive an organ,
or the use of the few available transplant centres and transplant
professionals by patients from abroad at the expense of resident
patients.
12. This report will address these three different aspects of
organ transplant tourism and will analyse their characteristics
(modus operandi, different
actors involved, etc.) and their effects. It will also present the
state of play on organ transplant tourism in Europe and in the world
(including in China, within the limits of available data), and identify
the key challenges in order to address this issue, with a view to
proposing policy responses to Council of Europe member States. It
relies heavily on the expert memorandum prepared by Mr Kristof Van Assche,
and on
the results of my fact-finding visit to Israel.


3. The overall picture
13. Transplant tourism is fuelled
by the demand of desperate patients who are willing to pay large
sums of money to obtain a kidney or, less frequently, a liver lobe
from a living donor. It is also fuelled by the willingness of some
physicians to take part in this criminal activity, in order to profit
from it. Transplant tourism typically involves the movement of recipients
to countries where the vulnerable and impoverished serve as an organ source
and where the surgical procedures are undertaken. However, recently
other forms of transplant tourism have emerged. For instance, recipients
and organ sellers may travel from the same country to the country
of destination where the surgery is undertaken; they may travel
from different countries to the country of destination where the
surgery is undertaken; or the organ seller may travel to the country
where the recipient and the transplant centre are located. Organ
sellers or organ recipients may even make a stop on the way in another
country where preparatory laboratory work and/or the cross-matching
takes place.
14. As a rule, transplant tourism takes place within authorised
transplant systems that exist in the countries of destination. In
those cases, local transplant professionals and even hospitals may
be knowingly and willingly involved in these illegal activities
or, alternatively, the recipient and the organ seller may have found
a way to deceive established screening mechanisms. However, on occasion,
illicit activities occur completely outside of the scope of the
country of destination’s legitimate transplantation programmes,
for instance in unauthorised clinics, private houses or hotel rooms.
15. Australia, Canada, Japan, South Korea, the United States of
America and countries in the Middle East and Western Europe have
been identified as countries of origin of transplant tourists. Recently,
due to a rapid expansion of dialysis programs in some parts of Africa
and Asia, transplant tourists from additional countries, including
Nigeria, have come onto the scene. Common destinations include Bangladesh,
Bolivia, Brazil, China, Colombia, Costa Rica, Egypt, India, Iraq,
Kazakhstan, Lebanon, the Republic of Moldova, Pakistan, Peru, the Philippines,
Sri Lanka, Turkey, the United States of America and Vietnam.
The most
recent anecdotal reports indicate that transplant tourism is currently
rampant in India, Pakistan, Egypt and Lebanon, and continuing at a
considerable scale in China, Sri Lanka and Turkey.
As a result of war and natural catastrophes,
transplant tourism has recently also emerged in countries such as
Iraq, Nepal and Yemen, and is increasingly targeting refugees (e.g.
from Syria and Sub-Saharan Africa) in countries such as Egypt, Lebanon
and Turkey. 



16. Organ sellers usually come from the poorest strata of society
and only co-operate because of their desperate financial situation
and because they are misled about the nature of the surgery and
the consequences of giving up an organ. Their position of extreme
vulnerability, lack of alternatives and lack of education is ruthlessly
exploited. For medical reasons, organ sellers between 20 and 40
years of age are preferred; they are predominantly male, except
in India. Organ sellers are recruited through advertisements in local
newspapers, on the Internet, by scouts working for recruiters or
they may present themselves directly to persons or medical facilities
known to be involved. Due to their precarious situation, organ sellers
generally have no real choice but to submit to the violation of
their physical integrity.
17. Studies highlight that a huge majority later express serious
regrets, stating that they would not have agreed if they had been
properly informed and if their situation had not been so hopeless.
In addition, fraud, deception, intimidation and coercion are frequently
used to force recruited organ sellers to co-operate and to dissuade
them from engaging law enforcement officials. Moreover, organ sellers
are further exploited in that the sum that they eventually receive
is generally much less than what had been promised, if money is
paid at all.
There
is even some anecdotal evidence of blatant organ theft from persons
undergoing unrelated surgery, from patients in psychiatric institutions,
and from persons abducted for their organs.

18. Studies on transplant tourism indicate that, even apart from
their exploitation, organ sellers suffer from very negative post-operative
consequences. Their hope of paying off crippling debts and securing
a minimum level of subsistence by selling an organ quickly proves
illusory. Few, if any, organ sellers manage to improve their financial
situation in the medium term. Within a couple of years, most of
them are back in significant debt and, in addition, they also experience
a significant decline in household income because their physical condition
has deteriorated as a result of the organ removal and this prevents
them from sustaining the demands of hard physical labour. A large
majority of organ sellers report that their health worsened significantly,
due to pre-existing compromised health conditions, a lack of post-operative
care and a continuing unhealthy lifestyle or environment. Because
of their inability to pay for medical assistance many, in time,
suffer organ failure, which is most likely to lead to early death.
Furthermore, these studies indicate that the organ sellers also
suffer from severe stigmatisation and social isolation, and many
also report depression and anxiety.
19. Transplant tourists who seek a transplant abroad may arrange
the contact with the organ seller and the transplant professionals
themselves. This scenario is most likely for patients who had earlier
migrated from, or have a close cultural affinity with, the destination
country. These patients may use local advertisements or personal
acquaintances in the country of destination to engage with the local
black market in organs. Alternatively, transplant tourists rely
on transplant ‘package deals’ that include travel and accommodation expenses,
payments to the broker and the organ seller and coverage of the
medical procedure. These deals are offered by transplant centres
and brokers operating in international trafficking rings, and contacted
through dedicated websites or through contact persons in the country
of origin.
20. Medical reports of the health status of returning transplant
tourists emphasise that transplant tourism frequently also negatively
affects the interests of the recipients, their families and communities.
Compared to transplantation within the regulated domestic system,
transplant tourists run significantly higher risks of mortality
and morbidity. More in particular, data reveal a higher frequency
of complications due to a higher incidence of unconventional, occasionally
even life-threatening infections, resulting in a significantly lower survival
rate of the graft and the patient. This poor outcome is caused by
a variety of factors, including inadequate pre-transplantation health
screening of organ sellers, worse initial health of the recipients
who are generally older or sometimes even excluded from their domestic
waiting list for medical reasons, substandard medical facilities
and medical aftercare, and compromised follow-up when they return
home, as a result of the lack of intelligible medical documentation.
Combined with the financial sacrifices that they have made to obtain an
organ, transplant tourists thus run a real risk of being exploited
themselves.
21. Several categories of health-care professionals may be implicated
in transplant tourism, including transplant surgeons and anaesthesiologists,
nephrologists or hepatologists, nursing staff, and lab technicians and
technical personnel to perform ancillary medical tests. Depending
on the circumstances of the case and of the technical organisation
of the medical interventions, these health-care professionals may
or may not be aware that they are involved in an illicit transplant
activity. In addition, the success of these illicit activities often depends
upon the support of a range of facilitators, which may include directors
of transplant units and hospitals, administrators of medical and
testing facilities, corrupt members of law enforcement and public officials
who facilitate illegal entries, arrange forged documents or turn
a blind eye to the illegal operations of transplant clinics. Other
types of support may be provided by so-called minders, who accompany
the recruited organ seller and may act as enforcers, and by translators,
drivers, travel agencies, insurance companies.
22. Similar to other regions of the world, the real magnitude
of transplant tourism in Europe is not well known. The few documented
cases or trafficking attempts have involved Sweden, North Macedonia,
Israel, Turkey, Ukraine and Spain,
as well as Bulgaria and Azerbaijan.
On-going work by the Council
of Europe Network of National Focal Points on Travel for Transplantation
indicate that many other countries may be concerned by these illicit
practices, either as countries of origin or countries of destination
of transplant tourists. In a few countries, it seems to be difficult
to completely eradicate illicit activities undertaken in private
transplant hospitals; in others, it remains possible to cheat the
system or exploit loopholes in national legislation to access domestic
waiting lists and receive organs from deceased donors. There is
surprisingly little information about migrants and refugees trafficked
for organ transplant tourism.
In Egypt, several surgeons have
recently been investigated in the framework of an organ trafficking
scandal (involving Sub-Saharan immigrants). However, we must keep
in mind that it is quite possible that people whose organs have
been removed do not ever make it to Europe in the first place.



4. The situation in China
23. Compared to western countries,
China has a transplant system that is fairly recent and has undergone significant
changes in the last two of years. A system of regulatory oversight
of organ transplantation was established in 2006 and transplant
legislation adopted in 2007. In 2007, it was acknowledged that more
than 90% of transplanted organs were obtained from executed prisoners.
In response to international pressure to stop this practice and
to align itself with the international guidelines issued by WHO,
initiatives were undertaken to reform the transplant system, with
sustained support from the international community and with the
help of dedicated transplant professionals from the West. As a result,
in October of 2014, the Hangzhou Resolution was promulgated in which
China committed itself to terminate its dependence upon organs from
executed prisoners and to prohibit organ trafficking and transplant
tourism.
24. The Hangzhou Resolution also announced measures to promote
altruistic deceased organ donation and transparency in organ allocation
through a national computerised waitlist and matching system, to
standardise the quality of organ transplantation by reducing the
number of transplant hospitals from more than 600 to 169, to establish
scientific registry systems for organ transplantation and to increase
regulatory oversight. In 2014, it was also proclaimed that China
was implementing a new national programme for deceased organ donation and
that all transplant hospitals would be required to stop using organs
from executed prisoners as of January 2015. A recent report indicates
that, as a result of these structural changes, the deceased organ
donation rate in China has dramatically increased from 0.03 per
million population in 2010 to 3.71 per million population in 2017.
Most experts maintained a stance of guarded optimism until recently,
emphasising that only through unwavering support from the international
community will China be able to complete the ethical reform of its transplant
system.
25. China’s announcements of its huge progress have not been uniformly
well-received by international observers. Some transplant professionals
working outside of China emphasise that transplant tourism to China has
not been eradicated. Moreover, it is feared by some that deceased
organ donation rates are being boosted by providing families of
a deceased person large sums of money in return for their approval.
Some critics are even more sceptical and their suspicions are fuelled
by the lack of transparency on the part of the Chinese government.
They suggest that it might well be that China is transplanting many
more organs than it officially wants to acknowledge and that prisoners,
including prisoners of conscience, such as Falun Gong practitioners, and
other minority groups such as Uighur Muslims, Tibetans and Christians,
may still be killed in secret prisons for their organs, which are
subsequently transplanted in military hospitals. These statements
are based on personal testimonies and undercover documentaries and
on reports presented by the authors David Matas, David Kilgour and
Ethan Gutmann, who allege that, on the basis of their own calculations,
China is transplanting between 60,000 to 100,000 organs a year,
predominantly procured from prisoners of conscience.
26. Indeed, a recently published analysis of official deceased
organ donation data casts doubt on the credibility of China’s organ
transplant reform.
This
analysis used forensic statistical methods to examine key deceased
organ donation datasets from 2010 to 2018, including two central-level
datasets published by the China Organ Transplant Response System
(COTRS) and the Red Cross Society of China. The authors of the study
conclude that “given the current information, the only plausible
explanation that accounts for all our observations is that the three
datasets were manufactured and manipulated from the central levels
of the Chinese medical bureaucracy. The goal of these elaborate
efforts appears to have been to create a misleading impression to
the international transplantation community about the successes
of China’s voluntary organ donation reform, and to neutralize the
criticism of activists who allege that crimes against humanity have
been committed in the acquisition of organs for transplant”. 


27. The authors of the study acknowledge that genuine efforts
of voluntary organ donations are also underway but that the – often
cash-incentivised – voluntary donation programme is apparently used
alongside nonvoluntary donors (executed prisoners) who are marked
down as “citizen donors”,
and that the apparent prisoner donors
may be up to seven times more numerous than the apparently voluntary
donors in some instances. In these circumstances, I believe it would
be wise for member States to exercise particular caution when co-operating
with the COTRS and the Red Cross Society of China.

5. Israel: a good practice example
28. Before the Israeli Knesset
adopted the Organ Transplant Act of 2008, many Israelis went abroad, including
to China, to receive (illicit) organ transplants, as the national
organ transplant system suffered from a severe shortage of organs,
and Israeli health insurance providers reimbursed (a significant
part of) the transplant expenses to organ transplant recipients.
I believe the best illustration I have come across of the situation
before the law was enacted is an article entitled: “Mr Tati’s Holiday
and João’s Safari – Seeing the World through Transplant Tourism”
by Nancy Scheper-Hughes,
which tells the story of Moshe Tati,
a sanitation worker in Jerusalem, who, in 1999, “was among the first
of more than a thousand mortally sick Israelis who signed up for
illicit and clandestine ‘transplant tour’ packages that included:
travel to an undisclosed foreign and exotic setting; five-star hotel
accommodation; surgery in a private hospital unit; a ‘fresh’ kidney
purchased from a perfect stranger trafficked from a third country”.
Mr Tati’s “holiday”, however, turned into a nightmare and he had
to be emergency air-lifted from a rented transplant unit in a private
hospital in Adana (Turkey) back to Israel, as Ms Scheper-Hughes
describes the story, having met him shortly after his near-death
experience. However, there were also organ “donors” recruited amongst
the Israeli vulnerable population, such as people freshly released
from prison, persons with disabilities, drug addicts, prostitutes, people
in debt.

29. The reimbursement of transplant tourists was motivated by
the desire to help patients in need and was provided irrespective
of the legality of the process. Thus, in the early 2000s, renal
transplantations performed through transplant tourism exceeded overall
numbers of kidney transplants performed in Israel.
However, even when transplants went horribly
wrong, or it was clear that organised crime was involved, it was
extremely difficult to prosecute because of the lack of a clear
legal basis.
This
changed with the 2008 Organ Transplant Act, enacted just before
the Declaration of Istanbul was signed, but already incorporating
its main provisions:


- prohibition of the trade in organs (no person shall receive or give a reward for an organ removed or transplanted, no person shall act as a broker between donor and recipient, or receive a reward for brokerage);
- punishment of organ trafficking with up to three years in prison and a large fine (no punishment for the organ “donor” or the organ recipient);
- extraterritorial jurisdiction (prosecution independent of whether trafficking takes place within or outside of Israel);
- no reimbursement of organ transplantation performed abroad if it involves illegal organ procurement or trade.
30. At the same time, the law set up a clear, transparent, well-documented
and strict national transplant system, including Central and Local
Evaluation Boards composed of a chairperson (a specialist physician
and head of a hospital department or unit not performing transplants),
a psychiatrist or clinical psychologist, a social worker, a representative
of the public and an attorney qualified to be appointed a District
Court Judge. The Evaluation Boards verify all documents submitted,
medical and mental fitness and interview both donors and recipients
to ensure there is full, free and informed consent and no pressure
of any kind. Thus, in 2018, 184 requests for live donation kidney
transplants were made in Israel, of which 161 were approved and
132 actually took place.
31. Our interlocutors were confident that the conditions inside
Israel are now so strict that no illicit organ transplants are taking
place any more in the national system (which runs 6 kidney transplant
programmes, 2 heart and lung transplant programmes, 2 paediatric
kidney transplant programmes and 1 paediatric liver transplant programme
in Israeli public hospitals).
To
increase live organ donation within Israel, the Organ Transplant
Law also removed several financial disincentives for live donation
by providing earning loss reimbursement of 40 days, reimbursement
for transportation covering all commuting to and from the hospital for
the entire hospitalisation and follow-up period; reimbursement for
7 days of recovery in a recuperation facility within 3 months after
donation; 5 years reimbursement of medical, work capability loss,
and life insurances; and reimbursement of up to 5 psychological
consultations.
As
a result, a marked increase in live kidney transplantation has been
observed; interestingly, up to 30% of live, unrelated donors are
altruistic donors originating from Jewish religious groups wishing
to give the “gift of life”. 



32. Another problem leading to organ shortage in Israel which
needed to be overcome were cultural and religious barriers to donation
following death determined by neurologic criteria (brain death),
rather than death determined by circulatory criteria (this is actually
also a problem in China). In practice, if only one family member
objects to a (deceased) donation in Israel, a transplant surgeon
will not go ahead. To overcome this problem, the 2008 law instituted
a points-based transplant waiting list and, following a big public
campaign, in 2012 introduced a donor-card system which attributes
extra points on the waiting list. Thus, for example, 30 points are
added to the list for a live kidney donor who needs a transplant
him/-herself, and 3.5 points for the first-degree relative of a
deceased organ donor, 2 points for carriers of an organ-donation
card, and 0.5 points for the first-degree relative of such carriers.
This system of incentivisation for organ donation is not without
criticism but does seem to have worked: the consent rate of families
to deceased donation has gone up from 40-45% before to almost 65%
in 2018 (close to the US average of 70%).
33. Israel is one of the few countries which has successfully
prosecuted organ trafficking under its 2008 law. In 2014-2016, three
cases led to convictions:
- State of Israel vs. Sendler, Wolfman and others: This criminal ring operated in Kosovo,
Azerbaijan, Sri Lanka and Turkey. The “donors” were from Israel and former Soviet Union republics;
- State of Israel vs. Ziss, Biton and others: This criminal ring operated in Turkey. The “donors” were from Israel;
- State of Israel vs. Mordechayev and Shimishishvili: This criminal ring operated in Turkey, Thailand and the Philippines. The “donors” were from former Soviet Union republics.
34. There is debate on whether the maximum prison sentence should
be upped to between five and ten years (from the current three).
6. Key challenges and possible policy responses
35. The example of Israel clearly
shows that a holistic approach is necessary to solve the problem
of organ transplant tourism. At its root, there is a need to close
the gap between the demand for and the supply of organs, in the
face of desperate people needing an organ whose number will only
increase in the future. Criminalising transplant tourism alone is
not the answer in my opinion. There also needs to be awareness raising,
public debate, properly organised and monitored national transplant
systems, as well as full transnational and international co-operation.
36. What policy responses should such a holistic approach therefore
entail? I would see the need for member States to:
- sign, ratify and implement all relevant global and Council of Europe Conventions;
- develop and improve existing transplant programmes in accordance with good practice examples, through professional education and training and collaboration across countries, with the aim of striving for national self-sufficiency in organ donation and transplantation;
- develop and implement population-based prevention strategies to prevent (and treat) organ failure in the first place;
- improve transplant oversight through intergovernmental efforts, in Europe and globally;
- effectively combat trafficking in human beings for the purpose of organ removal, and trafficking in organs, including through transnational and international co-operation, while ensuring adequate protection and assistance of victims.
37. There is an urgent need to strengthen the role of national
parliaments in tackling organ transplant tourism. Parliaments have
a vital role to play in promoting public awareness, adopting relevant
legislation and ratifying international legal instruments, and monitoring
their effective implementation.
38. In view of the global nature of the phenomenon of organ transplant
tourism, all states interested in joining the fight should be invited
to do so, but particularly Council of Europe observer states and
the states whose parliaments hold observer or partner for democracy
status with the Assembly. They are invited to accede to the relevant
Council of Europe Conventions open to them.