Background. Transplant tourism is a phenomenon where patients travel abroad to purchase organs for transplants. This paper presents the results of a fieldwork study by describing the experiences of Dutch transplant professionals confronted by patients who allegedly purchased kidney transplants abroad. Second, it addresses the legal definition and prohibition of transplant tourism under national and international law. The final part addresses the legal implications of transplant tourism for patients and physicians. Methods. The study involved seventeen interviews among transplant physicians, transplant coordinators and policy-experts and a review of national and international legislation that prohibit transplant tourism. Results. All Dutch transplant centers are confronted with patients who undergo transplants abroad. The estimated total number is four per year. Transplant tourism is not explicitly defined under national and international law. While the purchase of organs is almost universally prohibited, transplant tourism is hardly punishable because national laws generally do not apply to crimes committed abroad. Moreover, the purchase of organs (abroad) is almost impossible to prove. Conclusions. Transplant tourism is a legally complex phenomenon that warrants closer research and dialogue. The legal rights and obligations of patients and physicians confronted with transplant tourism should be clarified. 1. Introduction In 2000 the United Nations (UN) General Assembly adopted the UN Convention against Transnational Organized Crime (UNTOC) as a response to the expansion of global crime. This convention and its protocols aim to promote cooperation to prevent and combat transnational organized crime more effectively [1]. One of its protocols is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children [2]. With this protocol, the UN opted for a broad definition of trafficking in human beings (THB), recognizing that in addition to sexual exploitation, an international instrument was needed to address all forms of THB. The definition of THB was widened to include the forced removal of organs [2]. Almost all states have signed and ratified the UNTOC. Ratification involved the obligation of member states to bring in line the new THB definition with their national laws. The wider THB definition prompted the National Reporter on Trafficking in Human Beings to study organ trade and trafficking in the Netherlands. The Reporter advises and reports to the government on THB. The aim of the study was to verify whether the
References
[1]
United Nations Office on Drugs and Crime, United Nations Convention against Transnational Organized Crime and the Protocols Thereto, United Nations, New York, NY, USA, 2004, http://www.unodc.org/.
[2]
United Nations Office on Drugs and Crime, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, United Nations, New York, NY, USA, 2004, http://www.unodc.org/.
[3]
“National Reporter on Trafficking in Human Beings,” Fifth Report (2007), chapter 9 and Seventh Report (2009), chapter 13, http://www.bnrm.nl/.
[4]
“World Health Assembly Resolution 57.18,” Human organ and tissue transplantation, May 2004, http://www.who.int/gb/ebwha/pdf_files/WHA57/A57_R18-en.pdf.
[5]
O. Abboud, M. Abbud-Filho, K. Abdramanov et al., “The declaration of Istanbul on Organ trafficking and transplant tourism,” Clinical Journal of the American Society of Nephrology, vol. 3, no. 5, pp. 1227–1231, 2008.
[6]
F. Ambagtsheer and W. Weimar, “A criminological perspective: why prohibition of organ trade is not effective and how the declaration of istanbul can move forward,” American Journal of Transplantation, vol. 12, no. 3, pp. 571–575.
[7]
Coordination Action, “Living Organ Donation in Europe,” (EULOD project), This project is receiving funding from the European Commission Seventh Framework Programme (FP7/2010-2012), http://www.eulod.eu/.
[8]
W. L. M. J. Duijst, Gezondheidstrafrecht, Kluwer, Deventer, The Netherlands, 2009.
[9]
Proposal for Patients’ Rights (Care Sector) Act., “Wet ClientenrechtenZorg,” (WCZ). http://english.minvws.nl/en/folders/mc/2010/patients_rights_care_sector_act.asp.
[10]
J. S. Gill, A. Goldberg, G. V. R. Prasad et al., “Policy statement of canadian society of transplantation and canadian society of nephrology on organ trafficking and transplant tourism,” Transplantation, vol. 90, no. 8, pp. 817–820, 2010.
[11]
J. S. Gill, B. R. Madhira, D. Gjertson et al., “Transplant tourism in the United States: a single-center experience,” Clinical Journal of the American Society of Nephrology, vol. 3, no. 6, pp. 1820–1828, 2008.
[12]
M. T. Canales, B. L. Kasiske, and M. E. Rosenberg, “Transplant tourism: outcomes of United States residents who undergo kidney transplantation overseas,” Transplantation, vol. 82, no. 12, pp. 1658–1661, 2006.
[13]
I. Sajjad, L. S. Baines, P. Patel, M. O. Salifu, and R. M. Jindal, “Commercialization of kidney transplants: a systematic review of outcomes in recipients and donors,” American Journal of Nephrology, vol. 28, no. 5, pp. 744–754, 2008.
[14]
A. J. Cronin, R. J. Johnson, R. Birch, R. I. Lechler, and G. Randhawa, “Solving the kidney transplant crisis for minority ethnic groups in the UK: is being transplanted overseas the answer?” in Organ Transplantation: Ethical, Legal and Psychosocial Aspects, W. Weimar, M. A. Bos, and J. J. Busschbach, Eds., vol. 2, pp. 62–72, Pabst, Lengerich, Germany, 2011.
[15]
G. V. R. Prasad, A. Shukla, M. Huang, R. J. D'A Honey, and J. S. Zaltzman, “Outcomes of commercial renal transplantation: a Canadian experience,” Transplantation, vol. 82, no. 9, pp. 1130–1135, 2006.
[16]
Medicus Clinic Case, “Ruling Confirming the Indictment,” District Court of Pri？tina, KA 278/10, P 309/10 and KA 309/10, P 340/10, pp. 1-2, March 2011, http://www.eulex-kosovo.eu/en/judgments/CM-District-Court-of-Pristina.php/.
[17]
Regional Court of Kwazulu-Natal, Specialized Commercial Criminal Court, Durban, South Africa, Case no. 41/1816/2010.
[18]
Council of Europe, “Convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine: convention on human rights and biomedicine,” Treaty Series 164, 1997, Article 2 (Primacy of the human being) and Article 3 (Equitable access to healthcare).
[19]
W. L. M. J. Duijst, Boeven in het Ziekenhuis, Sdu uitgevers, Den Haag, The Netherlands, 2007.
[20]
J. I. Roodnat, J. Van de Wetering, W. Zuidema et al., “Ethnically diverse populations and their participation in living kidney donation programs,” Transplantation, vol. 89, no. 10, pp. 1263–1269, 2010.
[21]
M. de Klerk, K. M. Keizer, F. H. J. Claas, M. Witvliet, B. J. J. M. Haase-Kromwijk, and W. Weimar, “The Dutch national living donor kidney exchange program,” American Journal of Transplantation, vol. 5, no. 9, pp. 2302–2305, 2005.
[22]
K. Tanabe, “Japanese experience of ABO-incompatible living kidney transplantation,” Transplantation, vol. 84, no. 12, pp. S4–S7, 2007.
[23]
R. A. Montgomery, S. E. Gentry, W. H. Marks et al., “Domino paired kidney donation: a strategy to make best use of live non-directed donation,” The Lancet, vol. 368, no. 9533, pp. 419–421, 2006.
[24]
J. R. Rodrigue, D. L. Cornell, J. K. Lin, B. Kaplan, and R. J. Howard, “Increasing live donor kidney transplantation: a randomized controlled trial of a home-based educational intervention,” American Journal of Transplantation, vol. 7, no. 2, pp. 394–401, 2007.
