When it comes to illegal organ harvesting, the organ seller tends to be prosecuted over 'the medical elite' (2024)

In the 1990s, there was a terrifying urban myth about a person going to a party, being drugged and waking up to find their kidneys have been snatched and traded.

At the time, organ donor programs were horrified about the false story.

But in recent years, international organisations have become increasingly concerned about the "hidden" crime of the commercial trade in human organs. Many experts believe this is big business in some countries.

Vulnerable people, mostly in developing nations, sell their kidneys to patients, many of whom travel from more affluent countries such as Australia.

Reliable figures on the illegal trade are hard to track down but, in 2008, the World Health Organization (WHO) estimated 5 per cent of all transplants performed worldwide were illegal. And living kidneys — the organ most commonly in demand — are the most highly reported traded organ.

While it's commonly believed the illegal organ trade is underground, experts argue the opposite is actually happening.

"The trade is quite deeply embedded within the medical sector and other legal industries," Frederike Ambagtsheer, an organ trafficking researcher, criminologist and assistant professor at the Erasmus University Medical Centre in Rotterdam (one of the largest kidney transplant centres in Europe), tells ABC RN's Law Report.

"One cannot perform an illegal transplant without the involvement of highly specialised medical staff, infrastructure and equipment," Professor Ambagtsheer says.

Illegal trafficking rings

In March 2023, Nigerian senator Ike Ekweremadu and his wife were convicted in a high-profile case of organ trafficking when they attempted to purchase a kidney for their daughter.

"[Their daughter] was on dialysis in the UK, she was living there, she needed a kidney and they tried to traffic a prospective young kidney seller to the UK in order to harvest his kidney and have that be donated to their daughter," Professor Ambagtsheer explains.

The case came to light when a Nigerian man from Lagos went to police saying he had been trafficked to the UK in order for his kidney to be harvested.

Senator Ekweremadu was sentenced under Britain's modern slavery act to more than nine years in jail. The senator's wife and doctor were also jailed.

While this case demonstrates the illegality of the organ trade, Dominique Martin, professor of health ethics and professionalism at Deakin University, says the majority of the trade is embedded within legitimate transplant programs.

"Each case is supposedly reviewed by a transplant ethics committee and approved as being legitimate and free of commerce," Professor Martin explains.

However, she explains, in most cases it's only when the individual selling the kidney goes to police that "it's revealed that there's been a trafficking ring taking place".

In recent years, Professor Martin says there have been several organ trafficking rings busted throughout India and the Philippines.

She says it's only occasionally that there are reports of more underground operations.

"There was a horrific report in Pakistan where there was a surgeon who was operating in private hotel rooms and houses, the person administering the quasi-anaesthetic to the patients was in fact a mechanic … but that kind of real backwoods stuff is the exception," she says.

What is being done to curb the trade?

Commercial trade in human organs is currently illegal in all countries except Iran.

However, there are no restrictions on Australians travelling overseas to receive an organ transplant.

"We don't currently have what they call extra-territorial jurisdiction covering the laws that in Australia prohibit trade in organs," Professor Martin explains.

For example, if an Australian was to illegally purchase an organ in the Philippines, they could be prosecuted there but not under Australian law.

Last year, a private members' bill focusing on Australians who travel abroad to buy organs was put before federal parliament.

"So the essence of the bill is that there would be a declaration that passengers coming into Australia would be required to make, attesting to whether they had received an organ transplant while they were overseas … in the past five years," Professor Martin says.

The rationale behind this is that individuals would disclose if they had received a transplant overseas, which would prompt further investigation.

Professor Martin is sceptical of this approach.

"The first stumbling block [is] what would be the motivation for someone to disclose that information and how confident could we be that the majority were disclosing?" she asks.

An all-party parliamentary committee recommended the bill not be passed, instead calling on the federal government to deliver more public awareness campaigns.

Professor Martin believes a more effective approach would be to create a mandatory reporting system for doctors, which would focus on collecting data rather than information that identifies patients.

This is an approach supported by both the WHO and the United Nations.

A 2019 study, led by the University of Adelaide, surveyed transplant professionals working in Australia. It asked them specifically about providing care to patients who had received transplants overseas.

More than half of the doctors surveyed had treated patients who had returned from overseas after having had a transplant.

Professor Martin points out the majority of patients who travel for transplants have done so legitimately. For example, they could be returning to their home country to receive a transplant and be cared for by family.

"Not all cases of travel for transplant actually involve organ trafficking," she says.

An ethical organ trade

Professor Ambagtsheer is focused on researching the most effective incentives to increase both deceased and living organ donations, specifically kidney donations.

"It might help to reduce the black market abuses within the organ trade but also help us increase the supply, so that there is less incentive on the black market for people to trade and sell," she says.

Professor Ambagtsheer also advocates for the exploration of an ethical organ trade. The main stipulation would be that "you never allow patients to pay".

She says the model would require anonymous donation and full government oversight.

"The government would be the institution that gives an incentive to kidney donors, so there is no transaction between donors and recipients …. I think that would be an ethical way of incentivising organ donations," Professor Ambagtsheer says.

She says the incentive would not necessarily be cash, but could instead be something like free health insurance.

However, Professor Martin is fundamentally opposed to the suggestion "on both ethical grounds and also practical grounds".

She says countries like Spain, a world leader in donation and transplantation rates, can provide better solutions.

"They've done that, not by relaxing the ethics or taking ethical shortcuts or exploiting people; [instead] they've had a government that's really invested in the donation program," Professor Martin says.

"They've had a really concerted effort to engage the community and they're doing a lot of interesting things in terms of optimising the recovery of organs from as many potential donors as they can."

Both Professors Martin and Ambagtsheer remain concerned for the welfare of those who sell their kidneys or other organs.

"They don't receive appropriate after care, they're very often cheated in terms of the money that they were promised and they experience all kinds of financial, physical and psychological distress because of the deception that we see inside these black markets," Professor Ambagtsheer says.

She says a criminal justice approach to reducing the illegal organ trade often results in the prosecution of the kidney seller as there is a reluctance to prosecute "the medical elite".

"I don't think that the system that we have in place is really serving those we are aiming to protect," she says.