Addressing Transplant Tourism Problems and Proposed Solutions: Regulation Instead of Prohibition

Introduction

Medical tourism, as defined by scholar I. Glenn Cohen, is "the travel of residents of one country to another country for treatment."¹ Transplant tourism, a type of medical tourism, is traveling abroad to purchase an organ for transplant.² Although organ sale is currently illegal in every country except Iran, many countries—such as India, the Philippines, Pakistan, Bangladesh, and Egypt—have thriving black markets for these goods.³ Organ transplants are often the only effective means of treating end state organ failure,⁴ and the demand for transplants is especially high in developed and middle-income countries.⁵ Shortages of available donors and organs, however, have caused an increased demand with a limited supply.⁶ The Global Observatory on Donation and Transplantation estimates that in 2013, there were 118,000 organs transplanted globally, meeting only 10 percent or less of global needs.⁷ This gap in supply and demand has created a black market for underground organ sales⁸ where poor and vulnerable individuals sell their organs to brokers, who then resell these organs at higher costs.⁹ In 2011, the World Health Organization estimated that global illicit organ sales produced between $600 million and $1.2 billion annually.¹⁰ The market that has emerged is harmful to sellers in many aspects, and sellers are often taken advantage of by brokers' manipulative tactics.

This paper will explore the problems associated with black market organ sales and analyze its effects on sellers¹¹ (i.e., the people selling their organs) and the tourists (i.e., the people who travel abroad for transplantation). Part I will give an overview of how transplant tourism operates, focusing specifically on kidney sales. Part II will address ethical arguments for why transplant tourism is harmful to sellers. Part III will address the international response to this phenomenon and the various international protocols in place. Finally, Part IV will propose regulatory solutions that are aimed at protecting sellers. Since a thriving black market already exists, regulation–instead of outright prohibition–is the best solution for protecting sellers' well-being who are currently unprotected in the market.

Part I: Kidney Sales in Practice

A. Sellers

Cohen breaks down transplant tourism into the three basic players: the sellers, the recipients, and the brokers.¹² The sellers are often extremely poor and are selling their kidneys to escape bonded labor, to pay off debts, or to provide a better life for their children.¹³ The brokers, those individuals who facilitate the deal, are often affiliated with organized crime and frequently rely on misinformation and threats to induce individuals to agree to sell their kidneys.¹⁴

A comprehensive study of kidney sellers in the Philippines revealed that sellers had little to no formal education, were extremely poor,¹⁵ and were often motivated by social pressure and guilt.¹⁶ Recruiters and brokers were often neighbors or friends and told the seller that the recipient was in dire need and would die without the transplant.¹⁷ Brokers often persuaded individuals into agreeing to sell their organs because of the guilt the brokers placed on them if they refused to help a member of the community.¹⁸ However, most sellers were motivated by economic necessity and agreed to sell their kidneys for a prospect of a better future.

A separate study of sellers in Bangladesh conducted by Moniruzzaman revealed a similar pattern of poor sellers being driven by economic necessity into selling their kidneys.¹⁹ Classified ads in local newspapers helped recruit sellers and put them in contact with brokers.²⁰ The brokers often emphasized that they were seeking an organ donation, which they characterized as a noble act.²¹ The brokers also promised to pay all costs, including compensating the seller, and assured the seller that the operation was completely safe.²² Brokers also frequently told sellers the story of the "sleeping kidney": removing one kidney "awakens" the other kidney, and a person can live a healthy life with only one kidney.²³ The situation is presented as a win-win because the seller keeps...