Last month's
Compassion, Not Commerce: An Inquiry into Human Organ Trafficking and Organ Transplant
Tourism by the Human Rights Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade comments
Organ trafficking, the unethical removal, transfer or commercialisation of human
organs for transplantation outside legal frameworks poses severe risks for both
organ recipients and donors. It is an illicit trade that changes over time with
developments in transplantation surgery techniques, the availability of medical
infrastructure, uneven economic development, migration patterns, demographic
trends, socio-economic exclusion, and the evolution of national multinational
criminal networks.
.... The organ trade has evolved and continues to evolve under the
influence of forces of demand and supply as well as changes in national and
international regulation and law enforcement.
Judgements made about the extent and geographical focus of organ trafficking
and transplant tourism a decade or more ago may have limited validity in relation
to present trends and circumstances, and this report demonstrates that without the
collection of accurate data, solutions will be difficult to create.
This report examines the global prevalence of human organ trafficking and the
scope of Australian participation within this illicit trade. The report further
considers international frameworks to combat organ trafficking and organ
transplant tourism and specifically recommends that Australia sign and ratify the
Council of Europe Convention against Trafficking in Human Organs.
The report further recommends that the Australian Government pursue a range of
measures to strengthen Australia’s involvement in international efforts to combat
human organ trafficking, improve relevant data collection, support public health
education programs, strengthen Australia’s legal prohibitions on organ trafficking,
and thoroughly investigate reforms that would enhance Australia’s domestic
organ donation program.
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With regard to the last issue it should be noted that surveys show the majority of
Australians – 69 per cent - are willing to donate their organs and/or tissue when
they die. In Australia, 90 per cent of families say yes to donation when their loved
one is a registered donor.
Despite this apparent support for organ donation, and a majority of Australians
believing that registering is important, only one in three Australians are registered
as donors. While 71 per cent of Australians think it is important to talk about
organ donation with their family, only half – 51 per cent -of Australians have held
this discussion about whether they want to be a donor with their loved ones.
This report largely deals with measures that are aimed at suppressing human
organ trafficking and transplant tourism.
The Subcommittee's recommendations are
Organ trafficking and organ transplant tourism in the global context
Recommendation 1
The Sub-Committee recommends that the Australian Government pursue
through the United Nations the establishment of a Commission of
inquiry to thoroughly investigate organ trafficking in countries where it
is alleged to occur on a large scale.
Recommendation 2
Given the contention and ongoing debate around transplant practices in
China, the Sub-Committee recommends that the Australian Government:
monitor the transplantation practices of other countries with
regard to consistency with human rights obligations, including with
regard to the use of the organs of executed prisoners;
seek the resumption of human rights dialogues with China;
continue to express concern to China regarding allegations of
organ trafficking in that country; and
offer to assist with the further progression of ethical reforms to the
Chinese organ matching and transplantation system.
Australian involvement in organ trafficking and transplant tourism
Recommendation 3
The Sub-Committee recommends that the Australian Government meets
international best practice standards by establishing a comprehensive
organ donation data collection repository, based possibly on the
ANZDATA model, but comprising a single point of access to data
regarding all organ transplantations in Australia, including outcomes of treatment, deaths, travel overseas for treatment, cross referencing against
waiting lists and other relevant information.
Recommendation 4
The Sub-Committee recommends that the Australian Government
ensures that suitably-anonymised data regarding the participation by
Australians in overseas commercial transplants, or those involved in
organ procured from a non-consenting donor overseas, be shared with
appropriate international partners, in order to combat transnational
organ trafficking through cross-jurisdictional intelligence sharing.
Recommendation 5
The Sub-Committee recommends that the Australian Government works
with the States and Territories, transplant registries, and the medical
community, to consider the appropriate parameters, protections, and
other considerations, to support a mandatory reporting scheme whereby
medical professionals have an obligation to report, to an appropriate
registry or authority, any knowledge or reasonable suspicion that a
person under their care has received a commercial transplant or one
sourced from a non-consenting donor, be that in Australia or overseas.
International frameworks to combat organ trafficking and organ transplant
tourism
Recommendation 6
The Sub-Committee recommends that the Australian Government sign
and ratify the Council of Europe Convention against Trafficking in
Human Organs, and works with the States and Territories to make the
requisite amendments to Commonwealth and State and Territory
legislation and ensure non-legislative obligations are met.
Australian legal and policy issues
Recommendation 7
The Sub-Committee recommends that the Australian Government amend
the Criminal Code Act 1995 and any other relevant legislation insofar as
offences relating to organ trafficking:
- include trafficking in human organs, including the solicitation of a
commercial organ transplant;
- apply to any Australian citizen, resident or body corporate;
- apply regardless of whether the proscribed conduct occurred
either within or outside of the territory of Australia;
- apply regardless of the nationality or residence of the victim; and
- apply regardless of the existence, or lack thereof, of equivalent
laws in the jurisdiction in which the offending conduct occurred.
Recommendation 8
The Sub-Committee recommends that the Australian Government
establishes a multi-lingual public health education program that:
- addresses the legal, ethical and medical risks associated with
participation in organ transplant tourism;
- includes a stream for educating frontline staff such as medical
professionals about how to best identify possible cases of organ
harvesting and support both vulnerable victims and desperate
patients, based possibly on the Anti-Slavery Australia e-learning
model;
- is designed in particular to educate Australians who were born in,
or have family associations in, countries where human organ
trafficking is known or suspected to occur.
Recommendation 9
The Sub-Committee recommends that the Australian Government
includes information on trafficking in human organs and transplant
tourism on relevant government websites, including on the
SmartTraveller.gov.au website, on country-specific pages of countries
where human organ trafficking is known or suspected to occur.
Recommendation 10
The Sub-Committee recommends that the Australian Government
- work with medical professionals, and other relevant stakeholders,
to examine the impact of non-specialist prescribing of
immunosuppressant medication on the efficacy of post-operative care
and;
- examine ways to implement capture of data relating to the
prescribing of immunosuppressant medication including that relating
to transplants occurring overseas.
Recommendation 11
The Sub-Committee recommends that the Australian Government seeks
to improve organ donation rates through a number of approaches
including:
- consultation with the relevant agencies, continue the promotion of
organ donation including education and awareness campaigns.
- ongoing funding of the Supporting Leave for Living Organ
Donors program and the Australian Paired Kidney Exchange Program
(AKX).
- further investigation of other countries donation programs,
including Opt-Out organ donation programs to determine whether
such a program could be appropriate for the Australian health system.
Case study on alleged human tissue trafficking
Recommendation 12
The Sub-Committee recommends that the Australian Government works with
the States and Territories, as a matter of priority, to ensure that any person or
body corporate importing human tissue into Australia for commercial
purposes produces verifiable documentation of the consent of the donor
person or their next-of-kin. This could include appropriate legislative changes
at the Commonwealth or State and Territory level where required.
The report states
On the 21 June 2017 the Human Rights Sub-Committee was tasked by the
Joint Standing Committee on Foreign Affairs, Defence and Trade, to
undertake an inquiry into the organ trafficking and transplant tourism.
The terms of reference required the Sub-Committee to examine this broad
issue including what Australia is doing to prevent and deter the practice
of organ trafficking and transplant tourism both in Australia and overseas.
In addition the Sub-Committee was asked to consider, whether it would
be desirable or practical for Australia to accede to the 2014 Council of
Europe Convention against Trafficking in human organs.
Definitions
There are a number of key terms relating to organ trafficking and
transplant tourism relevant to this inquiry. This section outlines
definitions for each of these terms, as they will be used within this report.
Organ trafficking
‘Organ trafficking’ encompasses two related types of activity: trafficking
in human organs; and the trafficking of persons for the purpose of organ
removal.1 ‘Trafficking in human organs’ refers to the unethical or illegal
removal, transference or commercialisation of human organs, outside of the governance system of the relevant jurisdiction. Where trafficking in
human organs is a crime, the object of that crime is the organ. The
Australian Government considers ‘trafficking in human organs’ to mean:
…the illicit trafficking in human organs, tissues or cells obtained
from living or deceased donors and transacted outside the legal
national system for organ transplantation.
‘Trafficking of persons for the purpose of organ removal’ refers to the
recruitment of a person, transportation of a person, or transference of a
person to the control of another person, for the purpose of removal of an
organ, outside of the governance system of the relevant jurisdiction.
Where the trafficking of persons for the purpose of organ removal is a
crime, the object of that crime is the trafficked person.
It is important to note that organ recipients or donors may travel
internationally legitimately, outside of commercial arrangements. For
example, a recipient may travel to another country were a relative is a
tissue match and has volunteered to donate kidney or a partial liver
without any commercial transaction having taken place.
Organ trafficking is defined in several international instruments. These
instruments will be discussed in detail in chapter 4 of this report. The
United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons
Especially Women and Children supplementing the United Nations
Convention against Transnational Organized Crime (the Palermo Protocol
which is discussed further in Chapter 4) defines organ trafficking in the
context of the broader prohibition on trafficking in persons, defining
‘trafficking in persons’ as:
…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…the removal of organs…the consent of
a victim…shall be irrelevant…
The Council of Europe Convention against Trafficking in Human Organs (the
Council of Europe Convention, this is discussed further in Chapter 4) was established in part in response to a definitional gap in the Palermo
Protocol identified by a joint United Nations and the Council of Europe
study. The joint study established that the Palermo Protocol addressed
only trafficking of persons for the purpose of organ removal, without
consideration as to trafficking in human organs themselves. The Council
of Europe Convention sought to address this gap, defining ‘trafficking in
organs’ as the “illicit removal of human organs…without the free,
informed and specific consent of the living or deceased donor” or where a
“donor, or a third party, has been offered or has received a financial gain
or comparable advantage” or the “transportation, transfer, receipt, import
[or] export” of organs removed under these circumstances.
The Declaration of Istanbul on Organ Trafficking and Transplant Tourism (the
Declaration of Istanbul, this is discussed further in Chapter 4) is a set of
principles and proposals towards the prevention of organ trafficking,
developed by representatives of international scientific and medical
bodies. Agreed at a gathering convened by the Transplant Society and the
International Society of Nephrology, the declaration defines organ
trafficking as:
…the recruitment, transport, transfer, harbouring or receipt of
living or deceased persons or their organs 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 to, or the receiving by, a third party of payments
or benefits to achieve the transfer of control over the potential
donor, for the purpose of exploitation by the removal of organs for
transplantation.
Organ transplant tourism
The term ‘organ transplant tourism’ refers to the cross-border travel of a
person to facilitate an organ transplant. While there is no legal definition
of transplant tourism under Australian law, the Australian Government
considers the term to mean:
…a prospective organ recipient voluntarily travelling to a foreign
country for the purpose of undergoing organ transplantation. The
organ may be acquired through legal, illegal or unethical means,
including without the full and free consent of the donor.
The World Health Organization (WHO) and the Declaration of Istanbul
provide a shared definition, considering transplant tourism to be a subset
of ‘travel for transplantation’:
Travel for transplantation is the movement of organs, donors,
recipients or transplant professionals across jurisdictional borders
for transplantation purposes. Travel for transplantation becomes
transplant tourism if it involves organ trafficking and/or
transplant commercialism or if the resources (organs, professionals
and transplant centers) devoted to providing transplants to
patients from outside a country undermine the country’s ability to
provide transplant services for its own population.
The Law Council of Australia notes that while the WHO/Declaration of
Istanbul definition is not binding, it is “internationally accepted and hence
instructive.”10 The importance of the WHO/Declaration of Istanbul
definition, as the basis of a common framework between international
standards bodies and the international medical community, is highlighted
by the United Nations, which has noted that the previous lack of an
agreed definition “made it more difficult to understand and analyse the
problem and its extent, and eventually to take appropriate
countermeasures at the national, regional and international levels.”
Origins and conduct of the inquiry
The inquiry of the Joint Standing Committee on Foreign Affairs, Defence
and Trade, Human Rights Sub-Committee into Human Organ Trafficking
and Organ Transplant Tourism arose from a series of private briefings.
The Human Rights Sub-Committee was approached by the Falun Dafa
Association of Australia who provided a private briefing together with
authors David Matas and David Kilgour on 22 November 2016 regarding
the alleged ‘harvesting of organs’ sourced from political prisoners,
prisoners of conscience, and those sentenced to execution by China.
Kilgour, Matas along with fellow author Ethan Gutman had published an
update to an earlier account of the alleged trafficking of organs in China
entitled: Bloody Harvest/The Slaughter - An Update. This publication
examines information concerning the transplant programs of hundreds of hospitals in China and claims that the Chinese government has been
performing 60,000 to 100,000 transplants per year since the year 2000 (as
opposed to the official Chinese claim of approximately 10,000 per year)
and the primary source for transplanted organs were imprisoned Falun
Dafa practitioners.
It is outside the capacity of the Sub-Committee to prove or disprove these
allegations. However given the importance of this issue, the SubCommittee wished to establish how extensive the practice of organ
trafficking may be with regard to Australian and what Australia might do
to combat the illicit sale and purchase of human organs.
A briefing was requested from the Department of Health, the Department
of Foreign Affairs, and the Attorney-General’s Department to discuss
organ trafficking predominantly from an Australian perspective.
The Sub-Committee also held a private briefing involving academics
specialising in organ transplant medicine and international organ
trafficking on the 9 May 2017 which was interrupted by business in the
Parliament on the day. Witness were invited back on the 13 June 2018 to
complete this briefing. These witnesses discussed the extent of organ
trafficking participated in by Australians, allegations brought by the Falun
Dafa Association against China, and the issue of organ transplant
trafficking and tourism more broadly.
The Sub-Committee was concerned with the allegations raised by the
Falun Dafa Association and by the apparent growth in this trade
worldwide. The Sub-Committee wished to ascertain if Australian
measures to deter and prevent organ trafficking in Australia and by
Australians have kept pace with this growing trade.
... The Committee referred the inquiry to the Human Rights Sub-Committee
to undertake with the following terms of reference:
The Committee will have regard to the offence of Organ
Trafficking under division 271 of the Criminal Code and whether
it would be practicable or desirable for:
- this offence to have extraterritorial application; and
- Australia to accede to the 2014 Council of Europe Convention
against Trafficking in Human Organs.15
Outline of report
Chapter 2 assesses the global prevalence of organ trafficking, international
legal frameworks and the risks of organ transplant tourism for donors and
recipients.
Chapter 3 examines the scope of Australian participation in organ
trafficking and transplant tourism and the adequacy of the data available
on organ trafficking by Australians.
Chapter 4 examines international frameworks to combat organ trafficking
and organ transplant tourism and considers the question of whether
Australia should sign and ratify the European Convention against
Trafficking in Human Organs.
Chapter 5 examines the current Australian legal framework relating to
participation in organ trafficking, and considers whether or to what
degree extraterritorial jurisdiction should be extended.
Chapter 6 examines as a case study of alleged human tissue trafficking, the
issues relating to the Real Bodies commercial anatomical exhibition on
display in Australia during the course of this inquiry
