Can We Legally Stop Britons Buying Kidneys on Asia’s Black Markets?

The World Health Organisation estimates 10,000 illegal transplants are conducted around the world annually. Inadequate law enforcement, a shortage of legitimate donors and the greater financial incentive provided by foreign buyers continue to fuel human organ black markets in developing countries, but what can we do about it in the UK?

The sale and purchase of human organs here is a criminal offence. However, in the West Midlands alone, doctors disclosed that 40 British patients had travelled to foreign countries in the last decade to purchase kidneys and many of these kidneys were purchased in Asia (1).

Rather than a lifetime on dialysis, a transplant dramatically improves quality of life of a patient with renal failure. There are huge risks involved in illegal foreign transplantations unlike transplants conducted in the UK where medical tests and a variety of steps are taken to prevent infection or organ rejection. Increasing awareness about the dangers of the black market is a step in the right direction.

In countries like India, Pakistan and Bangladesh, kidneys can be purchased illegally for as little as £750. In reality, foreign transplant doctors and brokers receive the lion share of the purchase price from the foreign purchaser than is ever passed on to the individual supplying the kidney. Studies of kidney vendors have found negative physical, emotional and mental effects on vendors. Rarely do they succeed in emerging from debt and for some, the act of selling an organ brings shame on families and vendors (2).

Until the Transplant of Human Organs Act in 1994 (“THOA”), a market for human kidneys operated legally in India (3). However, after THOA, Chennai appears to have become a hub for paid transplantation.

Investigating and prosecuting people involved in illegal foreign transplantations seems impossible. For starters, there is the lack of co-operation between the UK and other countries involved, an inability to extradite defendants and the perpetual problem of finding people to give evidence for the prosecution.

Information about the illegal purchase is highly unlikely to come to light because the criminal activity occurs abroad and away from the purview of foreign authorities. Moreover, if ever they are caught, purchasers can easily claim the kidney was an altruistic gift from a relative. Whilst UK doctors may have enough evidence to suspect their patient’s new kidney has been obtained illegally they are bound by a duty of patient confidentiality.

Additionally, there is an uncomfortable debate about whether organ suppliers (i.e. vendors) should be treated as criminals or victims of a crime. Similarly, should we regard foreign transplantation professionals as heroes or villains when they knowingly, or unknowingly facilitate a transplant abroad? Can we prove beyond reasonable doubt that the patient actually paid for the kidney? Is it in the public interests to prosecute recipient patients who have presumably been through enough stress already?

The question of “can we prosecute?” entangles itself with the question of “should we prosecute?”. The reality is the prohibition on organ trafficking and transplant tourism is ineffective.

England is moving towards a system of presumed consent, like Wales, which has seen a significant increase in the number of organs available for transplant. Increasing organ supply domestically saves lives of British patients but will also help prevent UK nationals from contributing to exploitative treatment of vulnerable people in countries where regulations for obtaining organs are poor or non-existent.

The UK endorsed the Declaration of Istanbul. Whilst it is not a legally binding document, there is a customary obligation among participants (4) to uphold the principles set out therein. The consensus is that organ trade has a negative impact on society and prohibiting trade is a matter of global importance. Goals of the Declaration include enhancing national deceased donor transplantations in order to “minimise the burden on living donors” (5) and make the legacy of transplantation an altruistic gift of health from one person to another.

States are encouraged to implement legislation combatting organ trade. Pakistan, China and Israel have all recently strengthened their laws against organ trade and prohibited any compensation for supplying organs (6) .

We are moving in the right direction, but we are a long way from being able to prosecute a UK citizen for purchasing a human organ on a foreign black market.

Chamali Fernando is a Civil Litigation Barrister in London and graduated in 2018 with an MA in Ethics and Law. Chamali is on the committee of the Society of Asian Lawyers.

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Notes:

1. Sommelad N, Dying Brits pay £75,000 for transplants on Facebook as criminal gangs cash in on terminally ill, Daily Mirror, 19 July 2015
2. SAA Naqvi, B Ali, F Mazhar et al ‘A socioeconomic survey of kidney vendors in Pakistan’ 20 Transplant International 934 (2007) and; M Moniruzzaman ‘Living cadavers in Bangladesh: bioviolence in the human organ bazaar’ (2012) 26 Medical Anthropology Quarterly 69
3. Transplant of Human Organs Act 1994 (Act. No. 42 of 1994) last accessed 27 July 2017 < http://lawmin.nic.in/ld/P-ACT/1994/TheTransplantationofHumanOrgansandTissuesAct, 1994.pdf> and Goyal M, Mehta RL, Schneiderman LJ, Sehgal AR Economic and health consequences of selling a kidney in India, Journal of American Medical Association 2002; 288: 1589-93
4. Over 100 countries have signed the Declaration.
5. Francis L Delmonico, ‘The declaration of Istanbul on organ trafficking and transplant tourism’ 18 Indian Journal of Nephrology (2008) 135-140
6. F. Ambagtsheer and W. Weimar 2011 ‘A Criminological Perspective: Why prohibition of organ trade is not effective and how the Declaration of Istanbul can move forward’ American Journal of Transplantation 12 no. 3 571-575