ORGAN TRAFFICKING A Global Conundrum

Anne-Laure Perquel April 2015

Abstract In an era of never ending growth, medical advances have not disappointed. In fact, the field of organ transplantation has made such outstanding progress that it has become a “victim of its own success”. While more people are living longer, more people are also requiring organs to further prolong their lives when faced with end stage organ failure. These organs are rarely available and mechanisms in place seem unable to provide a steady supply of organs to maintain donor lists short. And like most situations where demand surpasses supply to that extent, criminals step in to exploit a market which inevitably will yield high profits. But what can be done to increase the organ supply and keep criminals at bay?

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I. Introduction

As world population continues to grow and modern medicine never ceases

to discover new ways of prolonging lives, the number of patients seeking organ

transplants also increases.1 Surgical procedures have been performed for

thousands of years, however, organ transplantation is a rather new way of saving

terminally ill people, one that is only a few decades old.2 Indeed, surgical

transplants only became an established practice after WWII.3 The first successful

kidney transplant in North America only took place in 1954, the first liver

transplant took place in 1967, the first successful heart transplant was in 1968

while the first single lung transplant only took place in 1983.4

As a result of the technological advances in the field, over 25 body organs

and tissues can now be transplanted.5 All of this has inevitably led to a

considerable increase in the demand for transplantable organs and less of them

becoming available. In the UK for example, 9,000 patients are estimated to be in

need of an organ transplant at any given time, yet in 2008 only 3,500

1 Cody Corley, Money as a Motivator: The Cure to our Nation’s Organ Shortage, 11 Hous. J. Health L. & Pol’y 93, 94, (2011) 2 Peter Aziz, Establishing a Free Market in Human Organs: Economic Reasoning and the Perfectly Competitive Model, http://law.laverne.edu/wp-content/uploads/2010/02/67establishing-a-free-market-in-human-organs.pdf 3 Dr Ranee Khooshe Lal Panjabi, The Sum of a Human’s Parts: Global Organ Trafficking in the Twenty-First Century, 28 Pace Envtl. L. Rev. 1, 10, (2010) 4 Erica L. Rager, The Donation of Human Organs and the Evolving Capacity for Transplantation: Exciting Developments and Future Prospects, (2004) http://www.ncmedicaljournal.com/wp-content/uploads/NCMJ/jan-feb-04/Rager.pdf 5 Aziz, supra

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transplantations were performed6 and an estimated 10 patients die every day

waiting for an organ in the European Union.7

Furthermore, in China only 10,000 operations take place each year even

though there are around 1.5 million Chinese patients in need of an organ

transplant.8 Donation rates also vary from country to country. In the European

Union for instance, while Spain has a donation rate of 34.6 million, Romania has

a much lower rate of donations at 0.5/million.9

Organ donation is currently largely based on an altruistic principle of

giving without reward.10 And while organ transplantation is one of the most

admired areas of medicine, it is one that has led to the most deplorable of

crimes.11 The gap between supply and demand has unavoidably steered those

seeking to profit toward an underground world of trafficking, corruption and

exploitation of the poor for the benefit of the rich.12

Throughout this paper we will be looking at the issues caused by the lack

of availability of organs, especially transplant tourism, we will then look at the

applicable law as well as illustrative cases and suggested medical and legal

6 Leslie P. Francis, John G. Francis, Stateless Crimes, Legitimacy, and International Criminal Law: The Case of Organ Trafficking, 4 Crim. L. & Phil. 283, 285, (2010) 7 Id. at 285 8 Id. 9 Id. 10 Dr Ranee Khooshe Lal Panjabi, supra at 3 11 Id. at 10 12 Id. at 3

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solutions to the problem before deciding upon the best method to obtain a

significant enough increase in organ supplies thereby minimizing incentives for

criminals to engage in organ trafficking.

II. The black market and transplant tourism

Placing government restrictions on any market, either through restricting

prices or quantity, inevitably leads to the creation of a black market. This has

been seen with prohibitions on drinking, prohibitions on sex trade and illegal

drugs. The lower the amount of a particular product is available the higher the

price becomes for those who are willing to pay to obtain that product, even if

through scandalous means.13 Therefore, it is hardly surprising that black market

trends have emerged out of the seemingly unending organ shortage. Among these

controversial means are the illegal brokerage activities carried out by those who

consider kidneys to be a commodity. Transactions involving such facilitations in

organ transplants usually imply that there is a recipient, typically from a

wealthier country, who is willing to pay for a person from a poorer country, in a

more vulnerable position, to give them a kidney.14 The broker then arranges for

the transplant to be carried out, sometimes in a third country. There have been

reports of kidney donors being paid between $3,000 and $10,000 while wealthy

13 David L. Kaserman, Fifty Years of Organ Transplants: The Successes and the Failures, 23 Issues L. & Med.45, 58, (2007) 14 Id. at 59

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recipients are paying $100,000 or more for the surgery and the kidney.15 Such a

mark-up makes it clear why organ trafficking and such brokerage activities exist.

From an economic standpoint it seems like legalizing the trade of organs may be

the only viable option to reduce the incidence of such crimes.16

With the increasing need for organ supplies, patients in need of

transplants find themselves having to travel across borders to receive the

transplant needed to save their life. In some cases they do so because the organ

needed is not available in their home countries, or the transplant list is too long

and they do not want to die waiting for a suitable donor. In others they do so

because the technology needed to effectuate the transplant is not available in

their home country so travelling to obtain the surgery is the only option for them.

Finally, in some cases, patients are unable to obtain the organ needed due to

restrictions placed on the industry by restrictive organ transplantation laws.17

Patients facing these difficulties are so focused on obtaining transplants

for survival that they rarely take ethical considerations into account, and do not

concern themselves with how or where the organ was obtained.18 This has led to

some countries becoming hubs for transplant tourism and others becoming a

15 Id. 16 Id. 17 Alizera Bagheri, Asia in the Spotlight of the International Organ Trade: Time to Take Action, 2 Asian J. WTO & Int’l Health L. & Pol’y 11, 12, (2007) 18 Erica Teagarden, Comment: Human Trafficking: Legal Issues in Presumed Consent Laws, 30 N.C.J. Int’l L. & Com. Reg. 685, 685, (2005)

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source of organs or both.19 Asia is one example of such country. Others include

countries in Latin America where children have been known to be kidnapped and

missing, pituitary glands have been sold from poor people in Sao Paulo to a

private firm in the USA, Japanese patients have sought kidneys in south east

Asia, Israelis have sought organs in eastern Europe, Americans have obtained

organs from strangers in China, Peru and the Philippines.20 Human organs have

even appeared on eBay as objects for sale.21

In many third world countries, where extreme poverty is present, men and

women sell their body parts. Although it is illegal in almost every country, organ

trade remains a viable business because organs harvested from live donors are of

better quality than that harvested from corpses and donors seeking relief from

extreme poverty are willing to undergo the procedure of having an organ

removed, often in hopes of reimbursing debts. 22 The World Medical Association

has stated that “a financial incentive compromises the voluntariness of the

choice” and as Hughes has said “the poor will be exploited by a market for organs

because their comparatively limited range of viable options is being taken

advantage of.”23 However, it does not matter whether the donor willingly made

the choice to give away their kidney, the truth is that even if they were willing,

19 Bagheri, supra, at 13 20 Id. 21 Id. 22 Teagarden, supra,at 686 23 Dimitris Katsikis, A Philosophical Justification of the Individual’s Proprietary Right to Sell Her Body Parts, UCL Juris. Rev. 2009, 15, 72-93

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regardless of the compensation they received, they were most likely exploited by

ending up in a worse situation than they were before the harvesting occurred.24

In the US as well, a disturbing trend has been observed, while there has

been an increase in donations by 5217 from 1997 to 2006, the number of people

on the waiting list has also increased by 42,762.25 105,966 patients were on

waiting lists at the end of February 2010.26 Just over 30 years ago when the

federal legal framework for the regulation of organ donations and transplants

was implemented the framers expected to solve the problem of the organ

shortage in the U.S. through the National Organ Transplant Act (NOTA) but this

is far from the dire reality of today’s situation.27 Around 30 Americans per day

are estimated to die in wait for a suitable donor, or to be removed from waiting

lists because their condition has become too severe to undergo a transplant.28

Many uninsured patients in the US are encouraged to seek care abroad as it is

cheaper, and even some insurance companies offer incentives to use cheaper

healthcare providers abroad, in countries such as Brazil, China, India and many

more.29 This in no way helps to curb the problem of medical tourism.

24 Id. 25 Aziz, supra 26 Leslie P. Francis, John G. Francis, supra, at 285 27 Keith Humphreys, An Organ Shortage Kills 30 Americans every day. Is it Time to Pay Donors? http://www.washingtonpost.com/blogs/wonkblog/wp/2014/10/20/an-organ-shortage-kills-30-americans-every-day-is-it-time-to-pay-donors/ 28 Id. 29 Leslie P. Francis, John G. Francis, supra, at 285-286

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In 2007, an estimation was made at the Second Global Consultation on

Human Transplantation of the World Health Organization, that organ trafficking

is the source of 5-10% of the kidney transplants performed throughout the world

every year.30

Even doctors who take no part in performing transplants with suspiciously

sourced organs have a burden to bear when faced with patients who have sought

treatment abroad and returned after a transplant from an unidentifiable source.31

Some countries do not have sufficient legal framework to regulate these

transplants and help organ seekers obtain the organs they so desperately need.

These countries include Pakistan, The Philippines and Egypt.32 To make matters

worse, they do not release data as to the number of patients seeking transplants

on their soil.33

Transplant tourism has been defined by the United Network for Organ

Sharing as “the purchase of a transplant organ abroad that includes access to an

organ while bypassing laws, rules, or processes of any or all countries involved”34

30 D.A. Budiani-Saberi and F.L. Delmonico, Organ Trafficking and Transplant Tourism: A Commentary on the Global Realities, (2008) http://www.ncbi.nlm.nih.gov/pubmed/18416734 31 Id. 32 Id. 33 Id. 34 Id.

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III. The law on organ trafficking in the US

An initial attempt to address the issue of organ shortage in the US was the

drafting of the Uniform Anatomical Gift Act (UAGA). Unfortunately this piece of

legislation failed to solve the problem as organ demand continues to increase

while organ supply cannot keep up. 35 As a result, the National Organ Transplant

Act was passed in order to allow the funding of qualified organ procurement

organizations. (OPOs)36 At a federal level, the National Organ Transplant Act,

otherwise known as NOTA makes it “unlawful for any person to knowingly

acquire, receive, or otherwise transfer any human organ for valuable

consideration for use in human transplantation if the transfer affects interstate

commerce” 37 NOTA defines an organ as meaning “the human kidney, liver,

heart, lung, pancreas and any other human organ (other than the corneas and

eyes) specified by the Secretary of the Department of Health and Human services

by regulation” 38

Violations of the UAGA and NOTA lead to an array of civil and criminal

sanctions, varying from state to state. In California, for instance, violations such

as selling a human organ or removing of transplanting an organ knowing that it

was sold can lead to a $50,000 fine as well as a state prison term of three to five

35 Corley, supra, at 95 36 Id. 37 Teagarden, supra, at 693 38 Aziz, supra

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years.39 In contrast, in Nevada, although it is illegal to “knowingly sell, acquire,

receive or otherwise transfer for valuable consideration any human organ for use

in human transplantation” if a person is found guilty they will only be found

guilty of a misdemeanor. 40 Nevertheless, people facing death find themselves

resorting to black markets to find organs not readily available in the US.41 Many,

even in the medical profession, turn a blind eye to these issues.42

A few members of Congress voiced concern regarding the organ shortage

through the Organ Trafficking Prohibition Act (OTPA) of 2009. This was aimed

at increasing non-cash benefits to organ donors. The proposed bill received

strong support from the American Medical Association but it remains to be seen

whether non-cash benefits alone could make sufficient impact to significantly

increase the number of donated organs.43

IV. International laws on organ trafficking

The World Medical Association’s Declaration on Human Organ

Transplantation of 1987, adopted by the 39th World Medical Assembly in Madrid

states that “The purchase and sale of human organs for transplantation is

39 Id. 40 Id. 41 Corley, supra, at 99 42 Id. 43 Id. at 100-101

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condemned”.44 However, the WMA’s rules are rarely enforced especially when

dealing with desperate buyers who wish to survive terminal diseases and

desperate sellers who seek to escape extreme poverty or debt. 45 Since the WMA

does not have the power to enforce its provisions or discipline those that infringe

them, a black market has evolved whereby the most helpless in world society are

exploited for the benefit of those that can afford it. 46

In 2000, the United Nations issued a Protocol to prevent, suppress, and

punish trafficking in persons as a supplement to the Convention against

Transnational Organized Crime.47 The Protocol briefly mentions the removal of

organs in its definition of trafficking in persons; “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 labor or services, slavery or practices similar to slavery, servitude or the

removal of organs.” 48 This definition is based on the premise that the victim is

44 World Medical Association, Declaration on Human Organ Transplantation (1987) http://www1.umn.edu/humanrts/instree/organtransplantation.html 45 Teagarden, supra, at 686 46 Id. 47 Leslie P. Francis, John G. Francis, supra, at 288 48 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime

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being exploited, abused, due to a position of vulnerability.49 As of February 2010,

117 states had signed the protocol, including Egypt, India, Israel and the U.S.50

Under the protocol, states parties are expected to protect victims of trafficking

and establish policies to prevent and combat trafficking.51 Unfortunately, the

United Nations, the World Health Organization and other international attempts

at regulating organ trafficking have failed for lack of direct enforcement

mechanisms.52

V. Illustrative cases

Organs can only be obtained in very limited circumstances, whether legal

or not. These include kidnapping or homicide to steal an organ from an unwilling

donor,53 contracting to exchange an organ for consideration or relying on

government to obtain an organ legally.54 As the statistics demonstrate, relying

solely on government does not currently allow all patients on the waiting list to

obtain organs so many resort to the other methods illegally.

49 Elizabeth Pugliese, Comment: Organ Trafficking and the TVPA: Why One Word Makes a Difference in International Enforcement Efforts, 24 J.Contemp. Health L. & Pol’y 181, 195, (2007) 50 Leslie P. Francis, John G. Francis, supra, at 288 51 Id. 52 Id. 53 Eol Lee, Criminal Protections of Life Ethics on Organ Transplants – The Prohibition of Payment for Human Organs, 3 SKKU J.SCL & TECH. L 41, 41, (2009) 54 Id.

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In 2001, when an organ trafficking ring was broken up by Uzbek

authorities, a victim whose body was found in his home town was found to have

been promised employment in Canada but never in fact left the country.55

Throughout the investigation more than $6,000 was recovered along with the

passports of over sixty missing people.56 In rural parts of south-east Asia, almost

three fourths of young people have sold a kidney.57

Private hospitals in Thailand are treating indigent accident victims strictly

for the purpose of having kidneys available for use in expensive operations when

the accident patient dies and the family donates the organs.58 These operations

are still much less expensive in Thailand than they are in the US and patients

regularly visit these private hospitals for organ transplants at a fraction of the

cost of what it would have cost them back home.59 Both the hospital and the

patients benefit from a financial standpoint, highlighting once again reasons for

taking part in organ trafficking.

In 2002, a transplant surgeon convinced the family of a comatose

pregnant woman to have her transferred to Bangkok’s Vachiraprakam General

Hospital under the false promise of free medical care.60 The family was made to

sign a consent form permitting the removal of her kidneys in the event of her

55 Pugliese, supra, at 185 56 Id. 57 Id. 58 Id. 59 Id. at 186 60 Teagarden, supra, at 688-689

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death. The family received financial reward for burial costs in the amount of

$2,500 and the surgeon removed the organs as agreed. He then implanted the

kidneys into two different patients and charged each patient for the full amount

of surgery as well the “gifts” they received.61

Even in situations involving living donors, many are victims of

exploitation. Gheorgi Ungureanu from Moldova was taken to Turkey for the

harvesting of one of his kidneys after having been promised a job in Israel. To

this day he remains unable to do heavy work.62

The Chinese military operates several facilities where prisoners are forced

to donate their organs absent any type of consent.63 The practice of selling these

organs to wealthy foreigners has become so prevalent that pharmaceutical

companies have been urged to stop selling anti-rejection drugs to China.64

In some cases, the law is not just detrimental to the patients but also to the

donors. One shocking example is that of Susan Sutton whose parents were forced

to bury her in a pine box without a proper funeral service or markings on her

grave. They had altruistically donated her organs and helped a number of

patients.65 Cases like this render questionable government policies that allow the

sale of blood, sperm and eggs but bans the sale of organs thereby denying any

61 Id. 62 Pugliese, supra, at 185 63 Id. at 187 64 Id. 65 Corley, supra, at 102

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benefit to donors or their families.66 In fact, many organ recipients may be willing

to compensate donors or their families but the law stands in the way of such

bargains.67 Since we live in a world where it is perfectly acceptable to pay for

almost any kind of service, why shouldn’t a person who provided the service of

saving someone’s life be rewarded?68

Organ shortage does not just affect adults but children too. Mexico

recently made the headlines when police arrested Manuel Plancarte Gaspar, an

alleged member of a powerful cartel which supposedly kidnapped children in

order to harvest their organs.69 Unfortunately this shows that organ trafficking

may be even more profitable than drug trafficking.

VI. Medical Solutions

Medical solutions have been proposed to deal with the issue of organ

shortages. These include xenotransplantation, artificial body parts and tissue

engineering but so far none have been without limitations and failures. 70

66 Id. at 110 67 Id. at 102-103 68 Id. at 103 69 Child Organ Harvesting and Trafficking Linked arrest Made in Mexico – newspaper http://www.huffingtonpost.com/2014/03/17/child-organ-harvesting_n_4982854.html 70 Aziz, supra

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1. Xenotransplantation

David Cooper, who took part in the first successful heart transplants in the

United Kingdom, argues that more organs could be made available for transplant

through xenotransplantation as they would be harvested from animals instead of

human donors71, eliminating the need for consent from family members.

However, fitting a human with a pig heart valve is far less challenging that

transplanting whole organs which, just as donated human organs, involve a risk

of rejection.72 Although, some researchers believe this hurdle can be overcome

with the use of immunosuppressive drugs and modifying pig genes.73

Nevertheless, evidence is lacking to show the long term viability of whole pig

organs in human bodies.74 Some argue that this could be used as a short term

solution to buy time for patients on waiting lists for human organs.75

Xenotransplantation would not yield the results required to solve the issue

of organ shortage as it involves a higher risk of graft rejection as well as a danger

of cross-species contaminations. Not to mention the strong moral objections to

having a part of an animal transplanted into a human being. 76

71 Ed Yong, Replacement Parts: to cope with a growing shortage of hearts, livers and lungs for transplant, some scientists are genetically engineering pigs, while other are growing organs in the lab http://www.the-scientist.com/?articles.view/articleNo/32409/title/Replacement-Parts/ 72 Id. 73 Id. 74 Id. 75 Id. 76 Aziz, supra

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2. Tissue engineering

Artificial body parts have seen a little more success than

xenotransplantation but still remain only a partial solution to a wide problem.

Artificial hearts and kidneys have been successfully transplanted, but what about

the other organs people need to survive?77 A potential solution could be on the

horizon. Researchers have been looking into growing organs out of the patients’

own cells.78 Urethras, windpipes and vaginas have all been successfully grown in

labs and transplanted.79 Since the major issue with organ transplantation is the

risk of rejection, growing organs from a patient’s own cells would mean the

patient is his own donor potentially eliminating the risk of rejection altogether.80

Essentially the procedure would rely on four major steps: scanning the patient’s

organs to establish size and shape of the organ to be replaced, creating a scaffold

from various possible methods, and adding cells to it before placing in a

bioreactor and allowing the cells to grow and multiply, creating an organ in no

time.81 Bones, skin and cartilage have already reached the organ market but these

consist of relatively small numbers of cell types.82 Essentially, tissue engineering

is only successful in engineering skin and cartilage and is still inapt at dealing

77 Id. 78 An organ shortage is killing people. Are lab-grown organs the answer? http://www.vox.com/2014/11/20/7252365/lab-grown-organs 79 An organ shortage is killing people. Are lab-grown organs the answer? http://www.vox.com/2014/11/20/7252365/lab-grown-organs 80 Id. 81 Id. 82 Yong, supra

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with the complexity of engineering complex organs83 although this could change

in the future. “People differ about whether it will be achieved in 5 or 100 years,

but most people in the field believe that it’s a realistic goal.”84

VII. Legal Solutions

Many have suggested other non-medical solutions to the shortage of

organs available for transplant. These include arranging for financial or non-

financial incentives to the donors and possibly even setting up a regulated market

for organs and implementing laws that reflect the current socio-cultural

changes.85

When it comes to identifying possible solutions it is necessary to examine

the differences in U.S. and international attitudes to organ harvesting for

transplantation.86 The U.S. takes a very conservative approach to organ

harvesting, and the system as it is set up strongly discourages organ harvesting

altogether. This system has often been criticized as being the main cause of the

organ shortage in this country. 87

83 Aziz, supra 84 Yong, supra 85 Bagheri, supra, at 12 86 Teagarden, supra at 687 87 Id

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It seems necessary for the U.S. and other nations to work in tandem to

design a comprehensive transnational strategy to regulate the transfer of organs

and put an end to transplant tourism. 88 One of the major ways to deal with these

issues remains to increase the number of organs available for transplant.89

1. Establishing an organ market and financial

incentives

NOTA’s firm prohibition on the sale of organs prevents the legal creation

of an open organ market.90 Many argue that alternatives should be implemented

in order to increase the consent rate of potential donors. This can be done in two

ways; either through a policy of mandated choice, or one of presumed consent.91

These would counteract the difficulties in identifying the wishes of a deceased

person who might not have discussed the matter with family members. 92

When looking at the special status of renal dialysis within the Medicare

system and how much of a burden it has become on the taxpayer, it is arguable

that incentives for kidney donors should be implemented to reduce the shortage

and alleviate a $34 billion a year burden.93

88 Pugliese, supra, at 197 89 Teagarden, supra, at 698 90 Id. 91 Id. at 699 92 Id. 93 Humphreys, supra

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Nowadays, kidneys are the most commonly transplanted organs, as Mark

Siegler, Director of the MacLean Center for Medical Ethics, has said: “Organ

transplantation has become so effective and so relatively safe and beneficial, that

more and more people, appropriately, want to be recipients and want to have

their lives saved. But we have a fairly flat line of donors.”94 Siegler is among those

to argue that the gap between waiting lists and organ supplies cannot be

eliminated without living donors. He further argues that “the potential number of

living donors is essentially unlimited”, not to mention the fact that organs from

living donors are of better quality than that of deceased donors and consequently

carry less risk of complications post-surgery.95 Among his suggestions for

reducing the shortage was the recommendation that financial incentives be

implemented, and a regulated market for kidneys be established.96

He is not alone in having suggested implementing financial or insurance

based incentives to families of donors, however this can foreseeably have ethical

and legal consequences.97 What would happen in a case where two people were in

an accident together, they both become brain dead but at different times, and

although both families have consented to the harvesting of their organs, only one

is ultimately a suitable donor?98 One family would receive compensation while

94 Kevin Jiang, http://sciencelife.uchospitals.edu/2014/02/18/the-ethics-of-solving-the-transplant-organ-shortage/ 95 Id. 96 Id. 97 Arnold G. Diethelm, Organ Shortage: A Major Obstacle for Transplantation, http://asts.org/docs/default-source/presidential-address/diethelm-presidential-address.pdf?sfvrsn=2 98 Id.

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the other does not.99 Not to mention that this could lead to further debate as to

what constitutes brain death and when to allow the termination of life support for

harvesting of the organs for transplants.

2. Mandated choice

With mandated choice, adults would be required to decide whether or not

to donate their organs upon death, with the choice of how to compel people to

register their wishes left to policy-makers.100 This could be done when a person

obtains a driver’s license; questions on organ procurement could also form part

of state benefit claims or tax returns101 thereby removing the need for unpleasant

conversations with family members, increasing the number of potential donors

considering the issue and having their wishes honored upon death. 102

Two main objections to this system can be noted. Such a system, which

would essentially force people to make a choice, can be seen as undermining a

person’s autonomy.103 But on the flipside, this system would allow people to have

their wishes recorded and upheld after death in a way that other systems could

99 Id. 100 P. Chouhan, H. Draper, Modified Mandated Choice for Organ Procurement, J. Med. Ethics; 29, 158, (2002) 101 Id. 102 Teagarden, supra, at 699 103 P. Chouhan, H. Draper, supra, at 158

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not, so it can be seen as promoting autonomy insofar as relatives would not be

able to override the wishes of the deceased.104

On the other hand, some people believe that people should not be given a

choice in the matter at all and all should be presumed to be organ donors.105

3. Presumed consent

Some have suggested shifting towards a European model whereby people

would be presumed to be donors upon death rather than requiring them to

explicitly opt into the system.106 However, this suggestion was undermined by the

chief executive of OneLegacy (the nation’s largest organ and tissue recovery

organization) who said that “the recovery rate for deceased donors in the U.S. is

actually better than that of European nations with presumed consent laws. The

U.S. rigorously follows individual donor registrations whereas presumed consent

countries actually defer to family obligations.”107

Presumed consent could arguably increase the number of donors even

more since citizens would all be presumed to be donors unless they explicitly opt

out of the organ donor registry. Indeed, people refusing to donate their organs

would have to take affirmative steps to make sure they do not become donors.108

104 Id. 105 Id. 106Humphreys, supra 107 Id. 108 Aziz, supra

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This is the opposite of the “opt-in” system used in the US where the general rule

is that people do not donate their organs upon death. 109

Some European countries have opted for a presumed consent system, one

of which, Belgium, keeps a national database of people who have opted out and

where the availability of organs has significantly improved since the

implementation of the system.110 Also, some U.S. states have used this approach

in the field of cornea procurement. 111

This type of consent regime is not without criticism and opposition but it

does appear to be a viable option for increasing organ supplies. Some still argue

that people may find themselves forced to donate organs simply due to a lack of

knowledge of the law, others argue that this type of system is an imposition on

personal autonomy. 112

New John Hopkins research suggests that this system may not be such a

good idea because “with the opt-out the perception becomes, we will take your

organs unless you take time to fill out a form. That’s a dangerous perception to

have. We only want to use donated organs from people who intended to

109 Teagarden, supra, at 700 110 Id. 111 Aziz, supra 112 Id.

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donate.”113 Dorry L. Segev, M.D. has further stated that in the U.S., families of the

deceased ultimately are the ones to make the decision as to organ donation.114 Of

the 13 countries with presumed consent considered in the study, only two had

better rates of donation than the U.S.; Spain and Portugal115 and all of them,

except Portugal, required doctors to speak with relatives about the process of

donations and were prevented from proceeding with the harvesting of organs if

the family objected meaning the same hurdles are faced in those countries as in

the U.S. which uses an opt-in system.116

Segev argues that the main reason for Spain’s success in harvesting more

organs is their dedicated teams of specialized physicians in every hospital, who

screen for potential donors, help in the management of their care and

communicate with families. Dedicated physicians can make it far more

comfortable for families to be open to the notion of donating their loved ones

organs and it is them, not presumed consent that is bringing up donation rates.117

113 Presumed Consent Not Answer to Solving Organ Shortage in U.S. Researchers Say, http://www.hopkinsmedicine.org/news/media/releases/presumed_consent_not_answer_to_solving_organ_shortage_in_us_researchers_say 114 Id. 115 Id. 116 Id. 117 Id.

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Nevertheless, there remains the problem that very few deceased persons

are suitable donors so regardless of the consent laws this could not, of itself, solve

the issue of organ shortages.118

VIII. Conclusion

Medical advances in the field are never ending making humans victims of

their own success. While medical solutions may provide a solution for some it

still remains to be seen when whole organs will become available through

engineering and they are certainly not able, at this stage of research, to expect to

fill the huge gap between supply and demand for organs. However way one

chooses to address the issue of worldwide organ shortages, it seems there is no

one absolute solution to the problem.

It seems unlikely that national law could ever properly combat an

international evil and as we have seen international efforts have also failed.119

World population continues to grow, people live longer and longer and as

demand for organs continues to grow so will the incentives for those that seek to

exploit the weak or poor. As it has become so easy for people to simply hop on a

plane and seek treatment outside of their home countries it is absolutely vital for

118 Humphreys, supra 119 Dr. Ranee Khooshie Lal Panjabi, supra, at 7

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the medical and legal communities to work together to better regulate the organ

trade on a global scale; to ensure safe transplants for donors and recipients alike,

while maximizing the availability of organs and minimizing the exploitation of

the situation by devious criminals.