ORGAN TRAFFICKING

A Global Conundrum
Abstract
In an era of never ending growth, medical advances have not disappointed. In fact, the field of
organ transplantation has made such outstanding progress that it has become a victim of its own
success. While more people are living longer, more people are also requiring organs to further
prolong their lives when faced with end stage organ failure. These organs are rarely available and
mechanisms in place seem unable to provide a steady supply of organs to maintain donor lists
short. And like most situations where demand surpasses supply to that extent, criminals step in to
exploit a market which inevitably will yield high profits. But what can be done to increase the organ
supply and keep criminals at bay?

Anne-Laure Perquel
April 2015

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I.

Law & Medicine

Introduction
As world population continues to grow and modern medicine never ceases

to discover new ways of prolonging lives, the number of patients seeking organ
transplants also increases.1 Surgical procedures have been performed for
thousands of years, however, organ transplantation is a rather new way of saving
terminally ill people, one that is only a few decades old.2 Indeed, surgical
transplants only became an established practice after WWII.3 The first successful
kidney transplant in North America only took place in 1954, the first liver
transplant took place in 1967, the first successful heart transplant was in 1968
while the first single lung transplant only took place in 1983.4
As a result of the technological advances in the field, over 25 body organs
and tissues can now be transplanted.5 All of this has inevitably led to a
considerable increase in the demand for transplantable organs and less of them
becoming available. In the UK for example, 9,000 patients are estimated to be in
need of an organ transplant at any given time, yet in 2008 only 3,500

Cody Corley, Money as a Motivator: The Cure to our Nations Organ Shortage, 11 Hous.
J. Health L. & Poly 93, 94, (2011)
2 Peter Aziz, Establishing a Free Market in Human Organs: Economic Reasoning and the
Perfectly Competitive Model, http://law.laverne.edu/wpcontent/uploads/2010/02/67establishing-a-free-market-in-human-organs.pdf
3 Dr Ranee Khooshe Lal Panjabi, The Sum of a Humans Parts: Global Organ Trafficking
in the Twenty-First Century, 28 Pace Envtl. L. Rev. 1, 10, (2010)
4 Erica L. Rager, The Donation of Human Organs and the Evolving Capacity for
Transplantation: Exciting Developments and Future Prospects, (2004)
http://www.ncmedicaljournal.com/wp-content/uploads/NCMJ/jan-feb-04/Rager.pdf
5 Aziz, supra
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transplantations were performed6 and an estimated 10 patients die every day

waiting for an organ in the European Union.7
Furthermore, in China only 10,000 operations take place each year even
though there are around 1.5 million Chinese patients in need of an organ
transplant.8 Donation rates also vary from country to country. In the European
Union for instance, while Spain has a donation rate of 34.6 million, Romania has
a much lower rate of donations at 0.5/million.9
Organ donation is currently largely based on an altruistic principle of
giving without reward.10 And while organ transplantation is one of the most
admired areas of medicine, it is one that has led to the most deplorable of
crimes.11 The gap between supply and demand has unavoidably steered those
seeking to profit toward an underground world of trafficking, corruption and
exploitation of the poor for the benefit of the rich.12
Throughout this paper we will be looking at the issues caused by the lack
of availability of organs, especially transplant tourism, we will then look at the
applicable law as well as illustrative cases and suggested medical and legal

Leslie P. Francis, John G. Francis, Stateless Crimes, Legitimacy, and International

Criminal Law: The Case of Organ Trafficking, 4 Crim. L. & Phil. 283, 285, (2010)
7 Id. at 285
8 Id.
9 Id.
10 Dr Ranee Khooshe Lal Panjabi, supra at 3
11 Id. at 10
12 Id. at 3
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solutions to the problem before deciding upon the best method to obtain a
significant enough increase in organ supplies thereby minimizing incentives for
criminals to engage in organ trafficking.

II.

The black market and transplant tourism

Placing government restrictions on any market, either through restricting

prices or quantity, inevitably leads to the creation of a black market. This has
been seen with prohibitions on drinking, prohibitions on sex trade and illegal
drugs. The lower the amount of a particular product is available the higher the
price becomes for those who are willing to pay to obtain that product, even if
through scandalous means.13 Therefore, it is hardly surprising that black market
trends have emerged out of the seemingly unending organ shortage. Among these
controversial means are the illegal brokerage activities carried out by those who
consider kidneys to be a commodity. Transactions involving such facilitations in
organ transplants usually imply that there is a recipient, typically from a
wealthier country, who is willing to pay for a person from a poorer country, in a
more vulnerable position, to give them a kidney.14 The broker then arranges for
the transplant to be carried out, sometimes in a third country. There have been
reports of kidney donors being paid between $3,000 and $10,000 while wealthy

David L. Kaserman, Fifty Years of Organ Transplants: The Successes and the Failures,
23 Issues L. & Med.45, 58, (2007)
14 Id. at 59
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recipients are paying $100,000 or more for the surgery and the kidney.15 Such a
mark-up makes it clear why organ trafficking and such brokerage activities exist.
From an economic standpoint it seems like legalizing the trade of organs may be
the only viable option to reduce the incidence of such crimes.16
With the increasing need for organ supplies, patients in need of
transplants find themselves having to travel across borders to receive the
transplant needed to save their life. In some cases they do so because the organ
needed is not available in their home countries, or the transplant list is too long
and they do not want to die waiting for a suitable donor. In others they do so
because the technology needed to effectuate the transplant is not available in
their home country so travelling to obtain the surgery is the only option for them.
Finally, in some cases, patients are unable to obtain the organ needed due to
restrictions placed on the industry by restrictive organ transplantation laws.17
Patients facing these difficulties are so focused on obtaining transplants
for survival that they rarely take ethical considerations into account, and do not
concern themselves with how or where the organ was obtained.18 This has led to
some countries becoming hubs for transplant tourism and others becoming a

Id.
Id.
17 Alizera Bagheri, Asia in the Spotlight of the International Organ Trade: Time to Take
Action, 2 Asian J. WTO & Intl Health L. & Poly 11, 12, (2007)
18 Erica Teagarden, Comment: Human Trafficking: Legal Issues in Presumed Consent
Laws, 30 N.C.J. Intl L. & Com. Reg. 685, 685, (2005)
15

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source of organs or both.19 Asia is one example of such country. Others include
countries in Latin America where children have been known to be kidnapped and
missing, pituitary glands have been sold from poor people in Sao Paulo to a
private firm in the USA, Japanese patients have sought kidneys in south east
Asia, Israelis have sought organs in eastern Europe, Americans have obtained
organs from strangers in China, Peru and the Philippines.20 Human organs have
even appeared on eBay as objects for sale.21
In many third world countries, where extreme poverty is present, men and
women sell their body parts. Although it is illegal in almost every country, organ
trade remains a viable business because organs harvested from live donors are of
better quality than that harvested from corpses and donors seeking relief from
extreme poverty are willing to undergo the procedure of having an organ
removed, often in hopes of reimbursing debts. 22 The World Medical Association
has stated that a financial incentive compromises the voluntariness of the
choice and as Hughes has said the poor will be exploited by a market for organs
because their comparatively limited range of viable options is being taken
advantage of.23 However, it does not matter whether the donor willingly made
the choice to give away their kidney, the truth is that even if they were willing,

Bagheri, supra, at 13
Id.
21 Id.
22 Teagarden, supra,at 686
23 Dimitris Katsikis, A Philosophical Justification of the Individuals Proprietary Right to
Sell Her Body Parts, UCL Juris. Rev. 2009, 15, 72-93
19

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regardless of the compensation they received, they were most likely exploited by
ending up in a worse situation than they were before the harvesting occurred. 24
In the US as well, a disturbing trend has been observed, while there has
been an increase in donations by 5217 from 1997 to 2006, the number of people
on the waiting list has also increased by 42,762.25 105,966 patients were on
waiting lists at the end of February 2010.26 Just over 30 years ago when the
federal legal framework for the regulation of organ donations and transplants
was implemented the framers expected to solve the problem of the organ
shortage in the U.S. through the National Organ Transplant Act (NOTA) but this
is far from the dire reality of todays situation.27 Around 30 Americans per day
are estimated to die in wait for a suitable donor, or to be removed from waiting
lists because their condition has become too severe to undergo a transplant.28
Many uninsured patients in the US are encouraged to seek care abroad as it is
cheaper, and even some insurance companies offer incentives to use cheaper
healthcare providers abroad, in countries such as Brazil, China, India and many
more.29 This in no way helps to curb the problem of medical tourism.

Id.
Aziz, supra
26 Leslie P. Francis, John G. Francis, supra, at 285
27 Keith Humphreys, An Organ Shortage Kills 30 Americans every day. Is it Time to Pay
Donors? http://www.washingtonpost.com/blogs/wonkblog/wp/2014/10/20/an-organshortage-kills-30-americans-every-day-is-it-time-to-pay-donors/
28 Id.
29 Leslie P. Francis, John G. Francis, supra, at 285-286
24
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In 2007, an estimation was made at the Second Global Consultation on

Human Transplantation of the World Health Organization, that organ trafficking
is the source of 5-10% of the kidney transplants performed throughout the world
every year.30
Even doctors who take no part in performing transplants with suspiciously
sourced organs have a burden to bear when faced with patients who have sought
treatment abroad and returned after a transplant from an unidentifiable source.31
Some countries do not have sufficient legal framework to regulate these
transplants and help organ seekers obtain the organs they so desperately need.
These countries include Pakistan, The Philippines and Egypt.32 To make matters
worse, they do not release data as to the number of patients seeking transplants
on their soil.33
Transplant tourism has been defined by the United Network for Organ
Sharing as the purchase of a transplant organ abroad that includes access to an
organ while bypassing laws, rules, or processes of any or all countries involved34

D.A. Budiani-Saberi and F.L. Delmonico, Organ Trafficking and Transplant Tourism:
A Commentary on the Global Realities, (2008)
http://www.ncbi.nlm.nih.gov/pubmed/18416734
31 Id.
32 Id.
33 Id.
34 Id.
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Law & Medicine

The law on organ trafficking in the US

An initial attempt to address the issue of organ shortage in the US was the

drafting of the Uniform Anatomical Gift Act (UAGA). Unfortunately this piece of
legislation failed to solve the problem as organ demand continues to increase
while organ supply cannot keep up. 35 As a result, the National Organ Transplant
Act was passed in order to allow the funding of qualified organ procurement
organizations. (OPOs)36 At a federal level, the National Organ Transplant Act,
otherwise known as NOTA makes it unlawful for any person to knowingly
acquire, receive, or otherwise transfer any human organ for valuable
consideration for use in human transplantation if the transfer affects interstate
commerce 37 NOTA defines an organ as meaning the human kidney, liver,
heart, lung, pancreas and any other human organ (other than the corneas and
eyes) specified by the Secretary of the Department of Health and Human services
by regulation 38
Violations of the UAGA and NOTA lead to an array of civil and criminal
sanctions, varying from state to state. In California, for instance, violations such
as selling a human organ or removing of transplanting an organ knowing that it
was sold can lead to a $50,000 fine as well as a state prison term of three to five

Corley, supra, at 95
Id.
37 Teagarden, supra, at 693
38 Aziz, supra
35

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years.39 In contrast, in Nevada, although it is illegal to knowingly sell, acquire,

receive or otherwise transfer for valuable consideration any human organ for use
in human transplantation if a person is found guilty they will only be found
guilty of a misdemeanor. 40 Nevertheless, people facing death find themselves
resorting to black markets to find organs not readily available in the US.41 Many,
even in the medical profession, turn a blind eye to these issues.42
A few members of Congress voiced concern regarding the organ shortage
through the Organ Trafficking Prohibition Act (OTPA) of 2009. This was aimed
at increasing non-cash benefits to organ donors. The proposed bill received
strong support from the American Medical Association but it remains to be seen
whether non-cash benefits alone could make sufficient impact to significantly
increase the number of donated organs.43

IV.

International laws on organ trafficking

The World Medical Associations Declaration on Human Organ

Transplantation of 1987, adopted by the 39th World Medical Assembly in Madrid

states that The purchase and sale of human organs for transplantation is

Id.
Id.
41 Corley, supra, at 99
42 Id.
43 Id. at 100-101
39

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condemned.44 However, the WMAs rules are rarely enforced especially when
dealing with desperate buyers who wish to survive terminal diseases and
desperate sellers who seek to escape extreme poverty or debt. 45 Since the WMA
does not have the power to enforce its provisions or discipline those that infringe
them, a black market has evolved whereby the most helpless in world society are
exploited for the benefit of those that can afford it. 46
In 2000, the United Nations issued a Protocol to prevent, suppress, and
punish trafficking in persons as a supplement to the Convention against
Transnational Organized Crime.47 The Protocol briefly mentions the removal of
organs in its definition of trafficking in persons; 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, at a minimum, the
exploitation of the prostitution of others or other forms of sexual exploitation,
forced labor or services, slavery or practices similar to slavery, servitude or the
removal of organs. 48 This definition is based on the premise that the victim is
World Medical Association, Declaration on Human Organ Transplantation (1987)
http://www1.umn.edu/humanrts/instree/organtransplantation.html
45 Teagarden, supra, at 686
46 Id.
47 Leslie P. Francis, John G. Francis, supra, at 288
48 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children, supplementing the United Nations Convention against Transnational
Organized Crime
44

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being exploited, abused, due to a position of vulnerability.49 As of February 2010,

117 states had signed the protocol, including Egypt, India, Israel and the U.S.50
Under the protocol, states parties are expected to protect victims of trafficking
and establish policies to prevent and combat trafficking.51 Unfortunately, the
United Nations, the World Health Organization and other international attempts
at regulating organ trafficking have failed for lack of direct enforcement
mechanisms.52

V.

Illustrative cases
Organs can only be obtained in very limited circumstances, whether legal

or not. These include kidnapping or homicide to steal an organ from an unwilling

donor,53 contracting to exchange an organ for consideration or relying on
government to obtain an organ legally.54 As the statistics demonstrate, relying
solely on government does not currently allow all patients on the waiting list to
obtain organs so many resort to the other methods illegally.

Elizabeth Pugliese, Comment: Organ Trafficking and the TVPA: Why One Word
Makes a Difference in International Enforcement Efforts, 24 J.Contemp. Health L. &
Poly 181, 195, (2007)
50 Leslie P. Francis, John G. Francis, supra, at 288
51 Id.
52 Id.
53 Eol Lee, Criminal Protections of Life Ethics on Organ Transplants The Prohibition of
Payment for Human Organs, 3 SKKU J.SCL & TECH. L 41, 41, (2009)
54 Id.
49

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In 2001, when an organ trafficking ring was broken up by Uzbek

authorities, a victim whose body was found in his home town was found to have
been promised employment in Canada but never in fact left the country.55
Throughout the investigation more than $6,000 was recovered along with the
passports of over sixty missing people.56 In rural parts of south-east Asia, almost
three fourths of young people have sold a kidney.57
Private hospitals in Thailand are treating indigent accident victims strictly
for the purpose of having kidneys available for use in expensive operations when
the accident patient dies and the family donates the organs.58 These operations
are still much less expensive in Thailand than they are in the US and patients
regularly visit these private hospitals for organ transplants at a fraction of the
cost of what it would have cost them back home.59 Both the hospital and the
patients benefit from a financial standpoint, highlighting once again reasons for
taking part in organ trafficking.
In 2002, a transplant surgeon convinced the family of a comatose
pregnant woman to have her transferred to Bangkoks Vachiraprakam General
Hospital under the false promise of free medical care.60 The family was made to
sign a consent form permitting the removal of her kidneys in the event of her

Pugliese, supra, at 185

Id.
57 Id.
58 Id.
59 Id. at 186
60 Teagarden, supra, at 688-689
55

56

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death. The family received financial reward for burial costs in the amount of
$2,500 and the surgeon removed the organs as agreed. He then implanted the
kidneys into two different patients and charged each patient for the full amount
of surgery as well the gifts they received.61
Even in situations involving living donors, many are victims of
exploitation. Gheorgi Ungureanu from Moldova was taken to Turkey for the
harvesting of one of his kidneys after having been promised a job in Israel. To
this day he remains unable to do heavy work.62
The Chinese military operates several facilities where prisoners are forced
to donate their organs absent any type of consent.63 The practice of selling these
organs to wealthy foreigners has become so prevalent that pharmaceutical
companies have been urged to stop selling anti-rejection drugs to China.64
In some cases, the law is not just detrimental to the patients but also to the
donors. One shocking example is that of Susan Sutton whose parents were forced
to bury her in a pine box without a proper funeral service or markings on her
grave. They had altruistically donated her organs and helped a number of
patients.65 Cases like this render questionable government policies that allow the
sale of blood, sperm and eggs but bans the sale of organs thereby denying any

Id.
Pugliese, supra, at 185
63 Id. at 187
64 Id.
65 Corley, supra, at 102
61

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benefit to donors or their families.66 In fact, many organ recipients may be willing
to compensate donors or their families but the law stands in the way of such
bargains.67 Since we live in a world where it is perfectly acceptable to pay for
almost any kind of service, why shouldnt a person who provided the service of
saving someones life be rewarded?68
Organ shortage does not just affect adults but children too. Mexico
recently made the headlines when police arrested Manuel Plancarte Gaspar, an
alleged member of a powerful cartel which supposedly kidnapped children in
order to harvest their organs.69 Unfortunately this shows that organ trafficking
may be even more profitable than drug trafficking.

VI.

Medical Solutions
Medical solutions have been proposed to deal with the issue of organ

shortages. These include xenotransplantation, artificial body parts and tissue

engineering but so far none have been without limitations and failures. 70

Id. at 110
Id. at 102-103
68 Id. at 103
69 Child Organ Harvesting and Trafficking Linked arrest Made in Mexico newspaper
http://www.huffingtonpost.com/2014/03/17/child-organ-harvesting_n_4982854.html
70 Aziz, supra
66
67

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Law & Medicine

Xenotransplantation

David Cooper, who took part in the first successful heart transplants in the
United Kingdom, argues that more organs could be made available for transplant
through xenotransplantation as they would be harvested from animals instead of
human donors71, eliminating the need for consent from family members.
However, fitting a human with a pig heart valve is far less challenging that
transplanting whole organs which, just as donated human organs, involve a risk
of rejection.72 Although, some researchers believe this hurdle can be overcome
with the use of immunosuppressive drugs and modifying pig genes.73
Nevertheless, evidence is lacking to show the long term viability of whole pig
organs in human bodies.74 Some argue that this could be used as a short term
solution to buy time for patients on waiting lists for human organs.75
Xenotransplantation would not yield the results required to solve the issue
of organ shortage as it involves a higher risk of graft rejection as well as a danger
of cross-species contaminations. Not to mention the strong moral objections to
having a part of an animal transplanted into a human being. 76

Ed Yong, Replacement Parts: to cope with a growing shortage of hearts, livers and
lungs for transplant, some scientists are genetically engineering pigs, while other are
growing organs in the lab http://www.thescientist.com/?articles.view/articleNo/32409/title/Replacement-Parts/
72 Id.
73 Id.
74 Id.
75 Id.
76 Aziz, supra
71

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Law & Medicine

Tissue engineering

Artificial body parts have seen a little more success than

xenotransplantation but still remain only a partial solution to a wide problem.
Artificial hearts and kidneys have been successfully transplanted, but what about
the other organs people need to survive?77 A potential solution could be on the
horizon. Researchers have been looking into growing organs out of the patients
own cells.78 Urethras, windpipes and vaginas have all been successfully grown in
labs and transplanted.79 Since the major issue with organ transplantation is the
risk of rejection, growing organs from a patients own cells would mean the
patient is his own donor potentially eliminating the risk of rejection altogether.80
Essentially the procedure would rely on four major steps: scanning the patients
organs to establish size and shape of the organ to be replaced, creating a scaffold
from various possible methods, and adding cells to it before placing in a
bioreactor and allowing the cells to grow and multiply, creating an organ in no
time.81 Bones, skin and cartilage have already reached the organ market but these
consist of relatively small numbers of cell types.82 Essentially, tissue engineering
is only successful in engineering skin and cartilage and is still inapt at dealing

Id.
An organ shortage is killing people. Are lab-grown organs the answer?
http://www.vox.com/2014/11/20/7252365/lab-grown-organs
79 An organ shortage is killing people. Are lab-grown organs the answer?
http://www.vox.com/2014/11/20/7252365/lab-grown-organs
80 Id.
81 Id.
82 Yong, supra
77

78

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with the complexity of engineering complex organs83 although this could change
in the future. People differ about whether it will be achieved in 5 or 100 years,
but most people in the field believe that its a realistic goal.84

VII.

Legal Solutions
Many have suggested other non-medical solutions to the shortage of

organs available for transplant. These include arranging for financial or nonfinancial incentives to the donors and possibly even setting up a regulated market
for organs and implementing laws that reflect the current socio-cultural
changes.85
When it comes to identifying possible solutions it is necessary to examine
the differences in U.S. and international attitudes to organ harvesting for
transplantation.86 The U.S. takes a very conservative approach to organ
harvesting, and the system as it is set up strongly discourages organ harvesting
altogether. This system has often been criticized as being the main cause of the
organ shortage in this country. 87

Aziz, supra
Yong, supra
85 Bagheri, supra, at 12
86 Teagarden, supra at 687
87 Id
83

84

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It seems necessary for the U.S. and other nations to work in tandem to
design a comprehensive transnational strategy to regulate the transfer of organs
and put an end to transplant tourism. 88 One of the major ways to deal with these
issues remains to increase the number of organs available for transplant.89
1.

Establishing an organ market and financial

incentives
NOTAs firm prohibition on the sale of organs prevents the legal creation
of an open organ market.90 Many argue that alternatives should be implemented
in order to increase the consent rate of potential donors. This can be done in two
ways; either through a policy of mandated choice, or one of presumed consent.91
These would counteract the difficulties in identifying the wishes of a deceased
person who might not have discussed the matter with family members. 92
When looking at the special status of renal dialysis within the Medicare
system and how much of a burden it has become on the taxpayer, it is arguable
that incentives for kidney donors should be implemented to reduce the shortage
and alleviate a $34 billion a year burden.93

Pugliese, supra, at 197

Teagarden, supra, at 698
90 Id.
91 Id. at 699
92 Id.
93 Humphreys, supra
88
89

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Nowadays, kidneys are the most commonly transplanted organs, as Mark

Siegler, Director of the MacLean Center for Medical Ethics, has said: Organ
transplantation has become so effective and so relatively safe and beneficial, that
more and more people, appropriately, want to be recipients and want to have
their lives saved. But we have a fairly flat line of donors.94 Siegler is among those
to argue that the gap between waiting lists and organ supplies cannot be
eliminated without living donors. He further argues that the potential number of
living donors is essentially unlimited, not to mention the fact that organs from
living donors are of better quality than that of deceased donors and consequently
carry less risk of complications post-surgery.95 Among his suggestions for
reducing the shortage was the recommendation that financial incentives be
implemented, and a regulated market for kidneys be established.96
He is not alone in having suggested implementing financial or insurance
based incentives to families of donors, however this can foreseeably have ethical
and legal consequences.97 What would happen in a case where two people were in
an accident together, they both become brain dead but at different times, and
although both families have consented to the harvesting of their organs, only one
is ultimately a suitable donor?98 One family would receive compensation while
Kevin Jiang, http://sciencelife.uchospitals.edu/2014/02/18/the-ethics-of-solving-thetransplant-organ-shortage/
95 Id.
96 Id.
97 Arnold G. Diethelm, Organ Shortage: A Major Obstacle for Transplantation,
http://asts.org/docs/default-source/presidential-address/diethelm-presidentialaddress.pdf?sfvrsn=2
98 Id.
94

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the other does not.99 Not to mention that this could lead to further debate as to
what constitutes brain death and when to allow the termination of life support for
harvesting of the organs for transplants.
2.

Mandated choice

With mandated choice, adults would be required to decide whether or not

to donate their organs upon death, with the choice of how to compel people to
register their wishes left to policy-makers.100 This could be done when a person
obtains a drivers license; questions on organ procurement could also form part
of state benefit claims or tax returns101 thereby removing the need for unpleasant
conversations with family members, increasing the number of potential donors
considering the issue and having their wishes honored upon death. 102
Two main objections to this system can be noted. Such a system, which
would essentially force people to make a choice, can be seen as undermining a
persons autonomy.103 But on the flipside, this system would allow people to have
their wishes recorded and upheld after death in a way that other systems could

Id.
P. Chouhan, H. Draper, Modified Mandated Choice for Organ Procurement, J. Med.
Ethics; 29, 158, (2002)
101 Id.
102 Teagarden, supra, at 699
103 P. Chouhan, H. Draper, supra, at 158
99

100

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not, so it can be seen as promoting autonomy insofar as relatives would not be

able to override the wishes of the deceased.104
On the other hand, some people believe that people should not be given a
choice in the matter at all and all should be presumed to be organ donors.105
3.

Presumed consent

Some have suggested shifting towards a European model whereby people

would be presumed to be donors upon death rather than requiring them to
explicitly opt into the system.106 However, this suggestion was undermined by the
chief executive of OneLegacy (the nations largest organ and tissue recovery
organization) who said that the recovery rate for deceased donors in the U.S. is
actually better than that of European nations with presumed consent laws. The
U.S. rigorously follows individual donor registrations whereas presumed consent
countries actually defer to family obligations.107
Presumed consent could arguably increase the number of donors even
more since citizens would all be presumed to be donors unless they explicitly opt
out of the organ donor registry. Indeed, people refusing to donate their organs
would have to take affirmative steps to make sure they do not become donors.108

Id.
Id.
106Humphreys, supra
107 Id.
108 Aziz, supra
104
105

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This is the opposite of the opt-in system used in the US where the general rule
is that people do not donate their organs upon death. 109
Some European countries have opted for a presumed consent system, one
of which, Belgium, keeps a national database of people who have opted out and
where the availability of organs has significantly improved since the
implementation of the system.110 Also, some U.S. states have used this approach
in the field of cornea procurement. 111
This type of consent regime is not without criticism and opposition but it
does appear to be a viable option for increasing organ supplies. Some still argue
that people may find themselves forced to donate organs simply due to a lack of
knowledge of the law, others argue that this type of system is an imposition on
personal autonomy. 112
New John Hopkins research suggests that this system may not be such a
good idea because with the opt-out the perception becomes, we will take your
organs unless you take time to fill out a form. Thats a dangerous perception to
have. We only want to use donated organs from people who intended to

Teagarden, supra, at 700

Id.
111 Aziz, supra
112 Id.
109
110

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donate.113 Dorry L. Segev, M.D. has further stated that in the U.S., families of the
deceased ultimately are the ones to make the decision as to organ donation.114 Of
the 13 countries with presumed consent considered in the study, only two had
better rates of donation than the U.S.; Spain and Portugal115 and all of them,
except Portugal, required doctors to speak with relatives about the process of
donations and were prevented from proceeding with the harvesting of organs if
the family objected meaning the same hurdles are faced in those countries as in
the U.S. which uses an opt-in system.116
Segev argues that the main reason for Spains success in harvesting more
organs is their dedicated teams of specialized physicians in every hospital, who
screen for potential donors, help in the management of their care and
communicate with families. Dedicated physicians can make it far more
comfortable for families to be open to the notion of donating their loved ones
organs and it is them, not presumed consent that is bringing up donation rates.117

Presumed Consent Not Answer to Solving Organ Shortage in U.S. Researchers Say,
http://www.hopkinsmedicine.org/news/media/releases/presumed_consent_not_answe
r_to_solving_organ_shortage_in_us_researchers_say
114 Id.
115 Id.
116 Id.
117 Id.
113

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Nevertheless, there remains the problem that very few deceased persons
are suitable donors so regardless of the consent laws this could not, of itself, solve
the issue of organ shortages.118

VIII.

Conclusion
Medical advances in the field are never ending making humans victims of

their own success. While medical solutions may provide a solution for some it
still remains to be seen when whole organs will become available through
engineering and they are certainly not able, at this stage of research, to expect to
fill the huge gap between supply and demand for organs. However way one
chooses to address the issue of worldwide organ shortages, it seems there is no
one absolute solution to the problem.
It seems unlikely that national law could ever properly combat an
international evil and as we have seen international efforts have also failed.119
World population continues to grow, people live longer and longer and as
demand for organs continues to grow so will the incentives for those that seek to
exploit the weak or poor. As it has become so easy for people to simply hop on a
plane and seek treatment outside of their home countries it is absolutely vital for

118
119

Humphreys, supra
Dr. Ranee Khooshie Lal Panjabi, supra, at 7

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the medical and legal communities to work together to better regulate the organ
trade on a global scale; to ensure safe transplants for donors and recipients alike,
while maximizing the availability of organs and minimizing the exploitation of
the situation by devious criminals.

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