By Lindsey Wagner for GlobalJusticeBlog.com.
You may have heard the story before: a young man visits a foreign city, goes out for a night on the town drinking, and flirts with a beautiful woman. The next morning he wakes up in his hotel room in a bathtub full of ice and discovers a surgical scar; his kidney has just been stolen and will now be sold by an organ broker for thousands of dollars on the black market. While this story may be more myth than reality, the fact remains that organ harvesting otherwise known as organ trafficking, is a real and thriving industry.
Although many have traditionally associated human trafficking only with sexual exploitation, via forced prostitution, or forced labor it does in fact incorporate organ trafficking as well. Under the United Nations Convention Against Transnational Organized Crime, in particular the supplemental Protocol I, commonly known as the Palermo Protocol, organ trafficking is placed under the definition of human trafficking. The Protocol states that human trafficking is, “the recruitment, transportation, transfer, harboring 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 removal of organs.”
The United Nations Global Initiative to Fight Human Trafficking, which organ trafficking is a part of, divides organ trafficking into three broad categories. The first category encompasses situations, like the oft-told story above, where traffickers force or deceive persons into giving up their organ. The second category, and perhaps the one under which most organ trafficking takes place, is where persons agree to sell their organ but they are either not paid at all for the organ or they are paid significantly less than they originally agreed upon. Finally, the third category is where vulnerable persons, including typically the poor and homeless, are treated for an ailment, which may or may not exist, and during that treatment their [good] organs are removed without the person’s knowledge. The use of any of these categories requires a host of persons, from the recruiter who finds the “donors” to the brokers and the medical professionals who perform the surgery. Rarely are all the members of this process ever exposed so it is impossible to know just how large the trade may be.
So where does this problem come from and just what is driving the organ trafficking trade? As of September 2014, in the United States alone there were 123,175 people waiting for lifesaving organ transplants and approximately 101,170 of these people were waiting for kidney transplants. To put this further into perspective, in 2013 only 16,896 kidney transplants took place in the United States and 4,453 people died while waiting for a kidney transplant. It is little wonder then that according to the World Health Organization (WHO) in 2010 approximately ten percent of all transplanted kidneys worldwide were illegally obtained and approximately 10,000 black market operations involving purchased organs take place annually. People, mostly from wealthy developed countries, seeking donor organs will pay upwards of $200,000 while the donors, mostly from poorer developing nations, themselves might if they are lucky receive less than $5,000 of that. With vast sums available to be made for organ traffickers and with supply and demand driving the black market, organ trafficking becomes an extremely difficult problem to deal with.
What then is being done to help stop organ trafficking? In most countries buying or selling organs is illegal. In the United States the sale of organs was banned under the National Organ Transplant Act of 1984 (NOTA). Yet, since the act’s passage only one person has ever been prosecuted and convicted of organ trafficking. In 2011, Levy Izhak Rosenbaum, an Israeli citizen who lived in New York, admitted to brokering black market sales of kidneys to three Americans and making approximately $410,000 in the process. Interestingly, none of the Americans who received the trafficked organs were prosecuted. The sale of organs may be illegal but the United States has chosen to do very little to stop organ trafficking under its current laws.
Further, although the United States and most other developed nations internationally have banned the sale of organs, the black market is robust and it could be argued that it has in fact helped it flourish. With such a high demand for organs and few legal ways to obtain them the black market sale of organs fills an ever-growing need for people who have the means. Perhaps if the United States and other countries were to legalize the sale of organs the darker aspects of organ trafficking could be avoided. While many people are willing to donate their organs merely for the altruistic aspect of helping a friend or family member it is not nearly enough to satisfy the need. If organ sales were legalized and overseen by the international community it might solve not only the supply and demand problems but also allow persons who want to sell their organs a safe and financially guaranteed way to do so, taking the sales out of the shadows. Obviously, this does still present the significant possibility of the poor being taken advantage of and organ traffickers scamming the needy out of their organs but it could at least work to eradicate a large aspect of the organ trade.
Two countries, Iran and the Philippines, are the only countries that have allowed for the legal sale of organs. It should be noted though, that currently Iran is the only country that allows for the sale of organs. In 2008, after international pressure and the passage of the Declaration of Istanbul, which dealt with issues of organ trafficking and transplant tourism, the Philippines banned the sale of organs. Under both countries laws, when it was legal in the Philippines and currently in Iran, they allowed for the sale of organs so long as the donor and recipient were natives of the country. Presently, in Iran a system of free market and government control is used, where donors sell the organs to the government who pays them, typically for a kidney it ranges from $2,000 to $4,000, and gives them free health insurance, related to issues with the transplant, for a year and the recipients must work to pay for the cost of their organ. In Iran and the organ market is thriving and in turn the waiting list for donors has been virtually eliminated.
Unfortunately, the horrific crimes of human trafficking, including organ trafficking, will continue no matter what actions the international community takes. That is just the nature of exploitation. That does not mean though that the trade itself cannot be minimized by merely taking notice and perhaps legalizing the sale of organs altogether.
Lindsey Wagner is a JD Candidate, Class of 2015. Wagner’ entry to the GlobalJusticeBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.
 United Nations Convention Against Transnational Organized Crime: Protocol to Prevent, Suppress, and Punish Trafficking in Persons, art. 3, Dec. 12, 2000.
 UN Global Initiative to Fight Human Trafficking, Trafficking for Organ Trade, http://www.ungift.org/knowledgehub/en/about/trafficking-for-organ-trade.html.
 National Kidney Foundation, Organ Donation and Transplantation Statistics, https://www.kidney.org/news/newsroom/factsheets/Organ-Donation-and-Transplantation-Stats.
 The Guardian, Illegal Kidney Trade Blooms as New Organ is ‘Sold Every Hour’, http://www.theguardian.com/world/2012/may/27/kidney-trade-illegal-operations-who.
 David Glovin et al., Kidney Broker Pleads Guilty in First U.S. Organ-Traffic Case, Bloomberg News (Nov. 8, 2011), http://www.businessweek.com/news/2011-11-08/kidney-broker-pleads-guilty-in-first-u-s-organ-traffic-case.html#p1.
 Denis Campbell & Nicola Davison, Illegal Kidney Trade Blooms as New Organ is ‘Sold Every Hour’, The Guardian (May, 27, 2012) http://www.theguardian.com/world/2012/may/27/kidney-trade-illegal-operations-who.
 Allison Kushner, Selling Organs in Iran, Foreign Policy Association (May 16, 2013), http://foreignpolicyblogs.com/2013/05/16/selling-organs-in-iran/.