Organ Trafficking in Canada:



Organ Trafficking in Canada:Policy Recommendations11/26/2012PAPM 4000 Christina Harrison BairdAuthored by: Adrienne McCarty, Kaleigh Norkum, Maureen Attivor and Rachel NeizerIntroductionFor the purposes of this essay, organ trafficking will be defined as the process whereby individuals trade their organs for monetary compensation. The purpose of this essay will be to explore the relationship between the law and organ trafficking. This will be accomplished by means of three goals. The first goal is to is to educate the reader about organ trafficking. It will do so by identifying the primary legal mechanisms which govern Canada’s perspectives on organ trafficking. The second purpose is to identify the weaknesses in Canadian organ trafficking policies when compared to that of the European community’s policy stances. The third underlying goal of this essay is to propose solutions that would strengthen Canada’s organ trafficking policies. Background InformationThe problem of organ trafficking arises from three primary sources. ?The first source is the global organ donor shortage of corneas, livers, hearts, and which an obstacle is for doctors who are practitioners of westernized medicine. The second cause of organ trafficking is the ability and willingness of wealthy individuals to purchase trafficked organs. The third is the level of poverty that people are facing that puts them in the position where they are so desperate that they are willing to sell their organs.Trafficking in organs represents a unique problem for human rights. Typically, when examining organ trafficking from a human rights perspective, one would primarily focus on the violations that affected the donors as they are often subjected degrading treatment from the harvesters. The donor’s human rights may be violated whether or not they give consent to have their organs harvested. If organs are harvested without consent, it is considered a violation of our life, liberty and security rights. This is especially prominent when the donors are killed for their organs as seen in China. In this circumstance, they are not only unwilling donors but they also have their life taken from them. However, even with consent, there are still many human rights violations that may occur. For example, the United Nations has seen a rise in the exploitation of consenting donors where donors are not given what they are promised in return for their organs. In these cases, the state has also failed to provide adequate protection for that person’s security and by extension life. In addition, many of the donors do not receive an adequate standard of healthcare during or after the procedure. Donors who sell their organs are often previously suffering from conditions related to poverty and the social welfare programs that exist are not adequately addressing the donor’s needs. However, the donors are not the sole victims of human rights violations in organ trafficking cases. Organ trafficking can often be the result of major human rights violations on the part of the state. According to the Canadian Society of Transplantation, Canada has a significant problem accommodating the needs of people who are require transplants, largely due to the lack of availability of organs. According to the organization’s website, approximately 4000 Canadians are in need of a transplant while only a quarter of that amount actually received the organs that were needed. Consequently, approximately 195 people died while waiting for an organ to become available. This shortage is responsible for significant human rights violations committed by the state. For example, the individual is not receiving adequate health care, their personal security is violated and as a consequence of them not having a necessary organ, they have a compromised quality of life. Additionally, when recipients receive organs, their bodies may reject the organs which also may compromise the quality of their life. However, the concerns over organ trafficking are not isolated to human rights violations. Organ trafficking also is a cause for concern when considering our domestic and international security due to its connections with organized crime. Consistently, traffickers target women and children in developing to be donors because of their vulnerable nature and levels of poverty. They are unlikely to report the crime and are often desperate enough to make the sale. Experts claim that traffickers are attracted to the business of organ trafficking because of the business and the relatively low risk of being caught. The organ trafficking business has excellent profit margins and will likely explode over the next thirty years due to the aging Boomer population. It is almost impossible to trace the origins of an organ once it is harvested and transported, making this crime ideal. Canada’s Domestic Policies on Human Organ TraffickingOne domestic policy in Canada is section 279(b) of the Criminal Code of Canada (CCC) pertaining to exploitation. This states that a person exploits another person if they have a tissue removed by means of deception, the use or threat of force and the use of any other form of coercion. If a person commits this this crime then they can be sentenced to a minimum of five years imprisonment if they have trafficked a person under the age of 18. The penalty can be moved to a minimum of six years in prison for trafficking a person under the age of 18 if there are aggravating factors associated with the act. Under the Canadian Criminal Code, the maximum penalty that a person can receive for the offence of trafficking is fourteen years to life in prison. However, this is only if the accused kidnaps, commits an aggravated or sexual assault against the victim, or causes death to the victim during the time of the offence. Another domestic policy that relates to organ trafficking is section 118 of the Immigration and Refugee Protection Act (IRPA). IRPA states that Canadian citizens are not allowed to knowingly organize one or more persons coming into Canada by abduction, fraud, deception, or the use of threat/use of force and coercion. Recruitment and transportation are prohibited, as well as harbouring these people. This subsection applies not only to living persons that are being trafficked; it also applies to organs that are trafficked in the country. If a person is found guilty of committing the offense then they can be sentenced to life imprisonment, have to pay a fine of $1,000,000, or both. In 2008, liberal MP, Borys Wrzesnewskyj introduced Bill C-500 to the House of Commons. This Bill proposes to amend the criminal code so that any Canadian who participates in an organ transplant that would be considered illegal in Canada would be punished under Canadian law. This is important because the transplant does not have to take place in Canada for the person to be punished, it can take place anywhere in the world. The Bill also states that organ recipients have to certify that the organ they have received was legally obtained; this is done by obtaining a certificate that establishes that the organ was donated and no money was paid. Those Canadians that travel overseas for transplant, referred to as "transplant tourists", could face difficulty if they receive organs from countries that are known for dealing in organs taken from unwilling donors. They would face difficulty in obtaining the certification needed to verify that the organ was not purchased or stolen. The Bill requires medical practitioners to report any organ recipient that does not have the proper documents of certification. Transplant tourists often rely on aftercare and drugs provided through their provincial medical systems after they return to Canada, if they cannot provide the proper certification documents then they will have to be prosecuted for their crimes. If the offender is found guilty then they can be sentenced to five years to life in prison. The current status of Bill C-500 is that it has only undergone the introduction and the first reading in the House of Commons. International MeasuresThe demand for organs has always exceeded the supply, however, the gap is widening especially in countries with an increased number of citizens with chronic diabetes and hypertension; which leads to more kidney diseases and renal failure. Organ trafficking does not serve the interests of the donors, endangers the health of recipients, and undermines the healthy development of the international transplant endeavor. International policies and protocols have been enacted to ensure that transplants are done legally and progressively to avoid potential health risks associated with trafficking. However, the scope of legal measures concerning organ trafficking is limited as at this time, and the trade is widely unknown and difficult to trace. The United Nations (UN), European Union (EU) and World Health Organization (WHO) are some of the larger international organizations that have created international measures to prevent the trafficking of human organs.The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons declares a prescribed action to prevent and combat human trafficking. It provides an international approach that includes measures to prevent trafficking, punish the traffickers and protect the victims who tend to be women and children. In 2002, Canada ratified the convention agreeing to undertake to criminally human trafficking which includes organ trafficking. The protocol, although progressive with its preventive measures for human trafficking, is limited in its understanding of organ trafficking. The complexity of organ trafficking and the organ trade is not accounted for in the document. The protocol adds organ removal as a facet of trafficking in persons. This, although true does not properly encompass the movement towards organ trafficking; organ trafficking is not limited to coercion, the trade can be more voluntary and some do receive payment. Since Canada ratified the agreement, little effort has been made towards preventative measures of organ trafficking. Christine Bruckert and Colette Parent, signatories to the Protocol state: “Under the protocol … signatory countries must prevent and combat trafficking in persons by undertaking to criminalize the organization of, assistance with or participation in the trafficking of individuals as defined in Article 3(a) … .They must also prevent and combat the problem by endeavoring to establish “measures such as research, information and mass media campaigns and social and economic initiatives to prevent and combat trafficking in persons.” The protocol advocates information sharing between states and the training of experts involved in one capacity or another in the struggle against human trafficking. The international community is also concerned about how organ trafficking has impacted children. The United Nations has released two documents that address these issues. The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography was added to the UN Convention on the Rights of the Child as an international response to the trend of children being targeted for organ traffickers. This rise was largely attributed to China’s One Child Policy which left millions of young girls without families or proper healthcare, making them particularly susceptible to traffickers. According to sources, China has specifically targeted and “slaughtered” these young girls and began selling their organs. The World Health Organization identified Canada, Israel, Japan, Oman, Saudi Arabia, the United States, and Australia as the most common importing countries; where organ importing refers to the countries of origin of the patients going overseas to purchase organs for transplantation purposes. Consequently, the WHO created the Guiding Principles on Human Organ Transplanting in 1999 in response to the growing angst regarding organ trade. It is one of the few legislations specific to organ trafficking. The principles do not legally bind members but nevertheless provide guidance for governments and even health care professionals. The nine different principles provide an ethical and orderly framework for regulating the transplantation of human organs for therapeutic purposes; with principle four specifically prohibit organ trafficking especially in minors. For the Guiding Principles to become a meaningful contribution to the goal of ending organ trafficking, they need to become legally binding. Then, Canada as a nation can have more of an enforcement role in prohibiting medical tourism for organ transplantation.Finally, the An Additional Protocol to the European Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human Origin, prohibits organ and tissue trafficking, deriving a financial gain or comparative advantage from the human body and its parts and calls on states to provide appropriate sanctions for such trafficking in Europe . Canada could use the European Union convention and model as an example of how to conduct a legally binding North-American treaty to prevent organ trafficking within their state boundaries and abroad.Domestic vs. International PoliciesComparatively, Canadian responses to organ trafficking are not as reactive as international responses have been. Scholars attribute this to the fact that organ harvesting is not as prevalent in Canada as it is in other nations. The problem with the Canadian legislation and respective bills, such as Bill C-500, is that it not only targets traffickers but also the recipients who require the trafficked organ to survive. In Canada’s efforts to regulate the trafficking, recipients are often targeted as opposed to the traffickers which would be a more effective method of organ trafficking prevention. Those recipients should be tried, in part, for their participation in organ trafficking because their actions have directly violated the human rights of another person. However, arguably, their punishment for the crime should not be as severe as the trafficker’s, as their involvement is often limited, as matter of self-preservation. The trafficker, however, is responsible for inflicting pain and the exploitation of vulnerable persons for profit. Another identifiable problem with domestic legislation is that it is difficult to prosecute transplant tourists for their crimes as it is difficult to trace the origins of the organs. Furthermore, when the origins are known, Canada has no jurisdiction to arrest organ harvesters that reside in other countries. However, Canada’s international legal obligations give it the ability to arrest, prosecute, or extradite harvesters.Under the pretext of international law, international treaties are technically binding to those States that sign on to them. However, the State still has a choice on whether or not they want to fulfill their obligations to that treaty; there is no way to legally enforce those responsibilities. Some methods of possible enforcement include sanctions or eviction from the United Nations, but outside of these examples it is hard to enforce international law even to those States that have signed on to the relevant treaties. SolutionsOur primary policy recommendation is to develop a national education campaign that specifically deals with organ trafficking in Canada. This way, Canadians can understand the origins of black market organs and the human rights implications. Previously, the Government of Ontario partnered with the Trillium Gift of Life Network to form an organ donation campaign called Recycle Me. This campaign works to inform the general public on the immense need for organ donors in the country, the educational campaign is primarily viral so the public can log onto the website at any time to receive facts on organ donation and how to become a donor. Their clothing campaign helped to promote education on organ donation and all the funds of these sales go to benefit the Lars-Erik Gelin Memorial Foundation for Transplant Research. However, the problem with this campaign is that it only promotes organ donation as opposed to educating the general public about the dangers of organ trafficking. Although increasing the number of people willing to donate their organs would help decrease the amount of people needing to resort to trafficking, it does not highlight the human rights issues linked to trafficking. Furthermore, since it is primarily a viral campaign there is no way to determine the campaign’s effectiveness which is contradictory to the campaigns mandate. Ideally, the campaign would mirror the Canada’s National Action Plan to Combat Human Trafficking. This campaign focused on educating the Canadian public, the authorities and service care providers. The training specifically addressed identifying victim, accessing the danger and responding to the needs of the victim. However, in order to accommodate the needs of the program, we recommend that the campaign also target hospitals where doctors and patients can learn about the harmful effects of trafficking. Our second recommendation is that Canada should adopt new laws which better reflect our international obligations in regards to human trafficking such as the Declaration of Istanbul on Organ Trafficking and Transplant Tourism. This 2008 document highlights the issue of the exploitation of vulnerable persons by traffickers and calls medical professionals to identify and prevent organ trafficking on the ground instead of completely depending on the state. The Declaration also states that every form of organ trafficking is a crime, that means that those who buy organs from harvesters are just as guilty in regards to the human rights violation being committed. This Declaration is not a treaty that countries can sign onto; it is represents a set of ethical principles formed by medical professionals around the world. The Canadian Society of Transplantation and the Canadian Association of Nephrology Nurses and Technologists endorse the Declaration. These organizations claim that Canada has a responsibility to adhere to the principles set forth in this exceptional document. Our third recommendation is that Canada should approach organ trafficking as many European nations do by recognizing it as an independent crime from trafficking in persons. In 2009, the United Nations partnered with the Council of Europe to complete a study called the Trafficking in Organs, Tissues and Cells and Trafficking in Persons for the Purpose of the Removal of Organs. The conclusion of this study found that a new treaty was needed in order to prevent organ trafficking. The new treaty would distinguish the crime of organ trafficking as separate from human trafficking and that, if put into place, this treaty could provide a new basis for protecting victims and punishing offenders. However, Canada has yet to draft this document. Iranian Model Another solution is for Canada to change its domestic policies in healthcare so that organ recipients do not have to wait for a prolonged period of time to receive an organ. Iran’s healthcare policies as it relates to organ donation are an example of the changes that Canada can make to reduce the need for trafficked organs. In 1988, Iran legalized living non-related donations (LNRD) of kidneys and established an associated transplantation system .This system has regulated and funded the transplantation process, as well as compensating the donors for their organs . The Dialysis and Transplant Association within the transplant system is staffed on a voluntary basis by end-stage renal failure patients, their job is to arrange contact between donors and recipients. The Iranian Government states that it is illegal for medical and surgical teams involved in the transplant process to receive any form of payment, this also pertains to middlemen .Within the first year of establishment of the system, the number of transplants nearly doubled and four out of five were from non-related sources. The Iranian Government provided payment and free health insurance for the organ recipient. The receiver of the ‘new’ kidney is provided with highly subsidized immunosuppression, if they cannot pay for the transplant themselves they are also aided by charitable organizations. Iran’s healthcare policies on organ transplants strictly prohibit transplant tourism since they found that Iranian donors were being exploited by the tourists. As a solution Iran offers refugee group’s transplants but they are not allowed to donate to people outside of their ethnic groups, further decreasing potential exploitation of vulnerable groups. There is no nationwide transplant registry in Iran so the outcomes of renal transplantation are difficult to assess. However, the Hashemi Nejad Hospital (HNH) in Tehran, one of the leading hospitals in Iran, does provide detailed analysis of its data. In the twenty years up to the beginning of 2006, just fewer than two thousand transplants in HNH were performed, three quarters of which were LNRD. Results are similar in terms of both graft and patient survival between LNRD and Living related donors (LRD) in both Iran and other countries. There is much less of a wait time in Iran for those waiting for donations and no significant exploitation is occurring. Moreover, those donating have access to benefits from the government and adequate health care, reducing the mortality rate of those donating. Canada may not be able to fully adopt the Iranian system but there can be compromises such as a possible non-monetary reward system. Canada could legalize the trade of organs of non-living donors within Canada and provide some sort of incentive for donors to do so. Patients who have previously agreed to be on the transplant list could receive priority health care and a monetary donation. Moreover, governments could control the monetary aspects of the transactions rather than having the payment passing directly from individual to individual. Thus the donor would effectively sell their organ to the state which would then allocate it on a basis of clinical need. Organ donation would have fewer complications, and would ensure that transplants are done ethically and safely. Moreover, the wait list for organs would be decreased and Canadians would have access to more organs so they would not rely on traveling abroad to receive a transplant. Research and Development Currently many medical professionals are in the process of growing organs. Scientists have been experimenting with artificial cells for years using high-tech 3D printing machines to build up layers of artificial cells into tissue structure. Unfortunately, these synthetically engineered cells often die before the tissue is formed due to a lack of blood vessels. What is needed next are cells from the patient to populate that organ skeleton. Currently most lab-grown organs have been using stem cells taken from bone marrow, as the research progresses adult stem cells and skin cells will be used to grow organs. If Canada were to invest in research and development of organ growth, Canada could become at the forefront of medical development. Moreover, Canada could become one of the leaders in medical tourism, generating revenue for the government. However, this technology, if perfected could help alleviate the world’s donor organ shortage. Organ recipients would not have to wait until a donor volunteered, or fell prey to medical tourism where there are clear abuses done to the donors.Another medical process that Canada can invest in is the process of using biological scaffolds taken from humans to create organs. This process uses a minuscule portion of the organ that isn’t suitable for donation and puts it through a digestion process that rids it of all the donors’ cells. All of the connective tissues are left out and the outlines of their blood vessels are untouched. Once a patient's cells are grown in the lab and turned into the right kind of cell, they can be inserted into the organ to attach to the biological scaffold. Many of the organs with lots of blood vessels, like the liver and kidneys, require at least a two-step process. First, the patient’s blood vessel cells can be inserted and grown in the blood vessels, and secondly the rest of the organ can be seeded with their other cells.Conclusion In conclusion, the purpose of this paper was threefold. The first purpose was to provide the reader with some information on organ trafficking. In the paper we established that organ trafficking represents a problem for both international security as well as human rights. Organized crime plays a major part in organ trafficking because of its high profit margins and relatively low risk for being caught. The second was to compare Canadian policies with international policies in order to identify the strengths and weaknesses of its response to the problem. Canada has largely failed to address the issues identified in various United Nations documents and international law which is why organ trafficking continues to occur on Canadian soil. We target recipients more than traffickers which does not effectively address the problem. Our healthcare system has failed to accommodate the needs of patients in need of organ transplants, causing many to turn to the black market. The third was to suggest recommendations to improve Canada’s polices. Our major recommendations were to educate the general public as well as hospital staff how to identify and prevent organ trafficking as current campaigns fail to specifically address issues of human rights. We also suggested that Canada address organ trafficking independently from other forms of human trafficking due to the differing needs of each issue. Organ trafficking will continue to be a problem as long as Canada fails to adequately address it.Bibliography BBC news. (2007, January 8). BBC News. Retrieved from Society of Transplantation (2005). Retrieved from Code, R.S.C. 1985, c.46, s.279. Retrieved from , Christine. (2012). 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