Last year I
noted I. Glenn Cohen's 'Transplant Tourism: The Ethics and Regulation of International Markets for Organs' in (2013)
Journal of Law, Medicine & Ethics 269-285. 'Reverse Transplant Tourism' by Kimberly D. Krawiec and Michael A Rees in (2014) 77(3)
Law and Contemporary Problems describes what the authors characterise as
a novel form of kidney swap, which we label “Reverse Transplant Tourism.” This proposal has the potential to increase the number of successful transplants in the US at a time of great need, while reducing costs. It also will provide benefits to impoverished international patients with willing, compatible donors who otherwise would have no access to transplantation. Instead of non-US kidney donors being offered money through a black market middleman in exchange for one of their kidneys, Reverse Transplant Tourism would provide a legal and ethical exchange of living donor kidneys through kidney-paired donation. In this way, the donors will not receive money for their kidneys, but rather will receive a transplant for someone they love, while also helping a US pair who would otherwise be unable to transplant due to biological incompatibility.
The authors indicate that
The new approach involves cross-border kidney-paired donation, which we label “Reverse Transplant Tourism,” or “RTT.” Though RTT is currently still a hypothetical – to date, no RTT swaps have been performed – we argue that such a program, if properly structured, is both legal and ethical, and is a natural next step in the development of kidney exchange.
Kidney exchanges, in which patients with willing but incompatible living kidney donors exchange their donor’s kidneys, have become common in the United States. RTT takes this approach a step further, by redefining incompatibility to include not only immunological barriers, but also a more prevalent incompatibility when transplantation is considered worldwide—the barrier of poverty. In the United States, there are many patients with kidney failure (end-stage renal disease, or “ESRD”) who have insurance to pay for a transplant, but whose donor has the wrong blood type or HLA antigens and thus is not immunologically compatible. In contrast, there are many poor patients outside of the United States with willing compatible living donors, who are not able to afford the immunosuppression necessary to sustain a renal transplant. In both these cases, the patients have barriers that prevent the transplant from moving forward.
RTT, if properly structured, can provide an opportunity for impoverished foreign patients to overcome their financial barrier and for American recipients to overcome immunological barriers through an international exchange of kidneys. The use of biologically compatible pairs also expands the donor pool in important ways, with particular benefits for O blood type recipients and sensitized recipients.
Moreover, RTT reverses some of the more pernicious effects of typical transplant tourism, in which a (comparatively wealthy) individual with ESRD travels abroad, normally to a comparatively poor country, to purchase organs for transplantation. These black market transactions have been widely condemned as a commercialization of organ transplantation that results in a net outflow of organs from the developing world to the developed (with accompanying cash flows in the opposite direction) under conditions that guarantee no protections for either donor or recipient.
RTT, in contrast, leverages the donative intent and reciprocity of friends and family inherent in the kidney paired donation model to avoid the “organ deficit” of traditional transplant tourism – under RTT, organ flows out of each country are matched with inflows. RTT also extends the benefits of the US transplant system to impoverished nations, allowing patients who could never afford a kidney transplant to obtain one. The “reverse” in Reverse Transplant Tourism thus carries a double meaning, one geographic and the other figurative.
Imperative to developing a proper structure for RTT will be to partner with countries that have enough infrastructure available to their citizens to ensure that ongoing transplant-specific medical care is available and local conditions are not hazardous to an immunosuppressed patient, so that the kidney transplant for the impoverished patient is not lost from preventable causes. Other safeguards could include patient screening protocols, standards and procedures to ensure organ quality, and firewalls between the non-profit funder and participating transplant centers and, eventually, between the nonprofit and any insurance and pharmaceutical companies that may provide funding.
Part II introduces the concept of Kidney Paired Donation (“KPD”) and an increasingly common variant, Altruistically Unbalanced Kidney Paired Donation (“AUKPD”), arguing that RTT is less ethically controversial in some respects than AUKPD, because neither RTT pair could successfully transplant in the absence of a swap. Part III details our RTT proposal, illustrating the mechanics and expenses of the exchange. Part IV analyzes RTT’s permissibility under the National Organ Transplant Act (NOTA), concluding that RTT does not involve “valuable consideration” as contemplated by the statute. Part V considers the policy rationales that might motivate the ban against the exchange of valuable consideration for transplantable organs, concluding that RTT does not threaten any of these policy concerns and, in fact, improves on the status quo with respect to some concerns. Part VI discusses the numerous benefits of RTT, both to the individual patient participants and to the health care system more generally. Part VII discusses sustainability and safeguards, while Part VIII concludes.
'Trafficking in Persons for the Purpose of Organ Removal: International Law and Australian Practice' by Andreas Schloenhardt and Samantha Garbutt in (2012) 36(3)
Criminal Law Journal 145-158
comments that
In international law, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children is the principal instrument to combat trafficking in persons for the purpose of organ removal. In 2011, Australia’s first investigation involving organ trafficking made headlines, raising questions about the application of relevant criminal offences and their compliance with international law. This article outlines international requirements and explores Australia’s legislative approach to criminalising organ trafficking in Div 271 of the Criminal Code (Cth). These offences are analysed in close reference to international law and best practice guidelines. The article concludes by developing recommendations to combat trafficking for the purpose of organ removal more effectively.
