Is organ harvesting often ignored as a form of human trafficking?

Human trafficking is a transnational crime, making it a form of business, one that generates a lot of money, enough to make billionaires of the crime perpetrators and even more to finance a lot of other world vices, such as violence and corruption.

Despite the world’s efforts to curb the vice of human trafficking by passing legislation to criminalise it, statistics still indicate high numbers. For instance, the International Labour Organisation (ILO) estimated that there were nearly 40.3 million victims of human trafficking worldwide. In terms of revenue generation, the Global Financial Integrity (GFI), in its Transnational Crime and the Developing World Report of 2017, reported that human trafficking generates about $150.2 billion in profits annually.

According to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, 2000, human trafficking encompasses illegal recruitment and movement of persons by means of force, threat, coercion, deception or abduction for the purpose of exploitation, including sexual exploitation, forced labour, servitude, slavery or removal of body organs.

By use of the term ‘exploitation’ in the definition of human trafficking, it can be seen as a form of slavery, a modern form of slavery that poses human rights challenges. Also of importance to note from the definition is that the ‘removal of body organs’ amounts to a form of human trafficking. However, human organ trafficking is often ignored as a form of human trafficking. This could be attributed to its highly secretive nature and probably, there is not enough public awareness, as is the case of other forms of human trafficking.

Human organ trafficking, which is also known as trafficking in persons for removal of organs, is significantly underreported, making it hard for anyone interested in curbing the vice to notice and understand the trends and patterns used by the numerous perpetrators involved. Organ trafficking was listed in 2017 as the fifth-most lucrative transnational crime. Global Financial Integrity approximated that the illegal trade generates approximately $840 million-1.7 billion annually.

Organ trafficking is enthused by the money generated from the sale of organs and the desperation of both the organ donor and recipient. Given that the supply of organs for transplantation does not match the current global need, commercialisation of organs, though illegal, becomes ideal. It has actually been estimated that nearly 10 per cent of all organ transplants are conducted illegally.

On the face of it, it might appear that there are only two parties involved in organ trafficking: The donor, who is desperately seeking to escape poverty by selling their organs, and a recipient, who is dying and willing to give anything to have even a few more extra years. Looking at it just from this perspective, the libertarians would actually argue that this kind of trade would not be illegal and it should actually not be prohibited. Probably because of the liberty to choose what happens to one’s body and also because a patient would be saving their life, while financially benefiting a person in need of money.

Departing from this thought, which is very much likely to face a lot of criticism, or support, from other schools of thought, there are other parties involved, including medical professionals and brokers, who are more concerned with the profits at the expense of other people’s health.

Save for the money and need for organs, weak penalties also encourage the practice of human organ trafficking. Putting in place heavy sanctions against the perpetrators of organ trafficking would be an effective way of curbing the illegal business. Having a law that only provides for a jail term and eliminates fines would in a way discourage the trade, as the recipients and donors would think again before getting involved.

This is, however, not guaranteed because some organ recipients would prefer exchanging their freedom for a few years in exchange for saving their lives. But then again, given the illegal attainment of an organ, a recipient is most likely to undergo the transplant in a back-door ‘hospital’, which is not necessarily sterile, the success of the transplant is not a guarantee.

Here in Kenya under s. 3 ( 5 ) of the Counter-Trafficking Persons Act 2010, a person who trafficks another person for the purpose of exploitation, commits an offence and is liable to imprisonment for a term of not less than 30 years or to a fine of not less than Sh30 million or to both, and upon subsequent conviction, to imprisonment for life.

As the government continues to come up with ways of combating human trafficking in general by, among other ways, formulating relevant and guidelines and applying preventive, defensive and rehabilitative programmes for the victims, it is important to take note of organ trafficking and accord it the right public awareness as the other forms of human trafficking.

Maybe it is also time to amend the punitive section of the law that allows fines in lieu of imprisonment for the punishment of human trafficking offences.

Elizabeth is an Advocate of the High Court. Associate at Ibrahim Yakub & Associates Advocates. She is passionate about Medical Law and Ethics most especially the ethics of both living and deceased organ donation and transplantation