Transplant tourism and organ trafficking

Introduction

Organ availability for transplantation has become an increasingly complex and difficult question in health economics and ethical practice. ¹ Advances in technology have seen prolonged life expectancy, an increase in single-organ disease and the global push for organ availability. ² There is an ever-growing gap between supply and demand and a significant cost in bridging the gap, ³ and this has led to suggestions of opening organ transplant to the free market and allowing for the sale of organs from any living donor. ⁴ Currently, the brokering and sale of human organs for transplant is illegal in all countries except Iran. ⁵ However, the market for commercially acquired human organs has been thriving globally. ⁶

This article will examine the ethical implications for the nursing profession in regard to the procurement of organs from an impoverished seller’s market, also known as ‘Transplant Tourism’. This term, used by the World Health Organization, ⁷ describes the practice of wealthy individuals travelling to developing countries and buying an organ and subsequent transplant surgery, bypassing the regulations in their own country. ⁸ This ethical dilemma raises questions of resource allocation, informed consent and the concepts of egalitarianism and libertarianism. Transplant Tourism is an unacceptable trespass against human dignity and human rights from both a nursing and a collective viewpoint. ⁶ The inevitable exploitation of people from developing nations and the corruption of ethically guided resource allocation are in opposition to the Australian Nursing and Midwifery Council (ANMC) ⁹ Code of Ethics for Nurses and the International Council of Nurses (ICN) ¹⁰ Code of Ethics. The practice would be considered ethically unacceptable to the nursing profession using the ANMC Code of Ethics as a framework.

Background on organ trafficking

In 2008, the International Summit on Transplant Tourism and Organ Trafficking ¹¹ released the Declaration of Istanbul. This consensus document, written by transplant specialists, ethicists and nephrologists, laid out a set of principles with regard to the safe and ethical procurement of organs for transplant and made a clear pronouncement on the protection of vulnerable populations at risk of commercial exploitation. The declaration does not carry the force of law; however, it sits alongside the World Health Organization Resolution 57.18 on Human Organ and Tissue Transplantation, which urges member states to protect their most impoverished and vulnerable from organ trafficking. ¹²

A right to healthcare is laid out by the United Nations (UN) Charter of Human Rights, ¹³ and this principle honours the ethical concepts of egalitarianism and justice. Beauchamp and Childress ¹⁴ describe the egalitarian approach to healthcare as all people having equal access to a decent minimum standard of healthcare, regardless of socio-economic status or geographical happenstance.

Organ availability and the free market perspective

Given the premise that the UN Charter requires universal access to healthcare, this healthcare needs to be allocated and paid for. The Australian Institute of Health and Welfare (AIHW) ¹⁵ estimates the current cost of healthcare in Australia to be 9.5% of Gross Domestic Product, or 140.2 billion dollars, based on the most current data from 2011 to 2012. As practitioners, we are fully aware of the seemingly infinite nature of society’s expectations of healthcare, attributed partly to the technological explosion of the last 50 years. ¹⁶ The demand for organ transplant is currently double the legal supply. ^17,18 Munson ¹⁹ writing on the ethics of organ transplant suggests that, as a society, we have a prima facie obligation to shape policy and practice to save the lives of the thousands who are languishing on an organ transplant waiting list, whereas Girod ²⁰ argues there is no moral imperative to increase supply simply because demand has increased.

A person with chronic or acute organ failure is placed on a waiting list according to the level of physiological need, ²¹ and while on the waiting list, the person may or may not die from organ dysfunction. ²² This form of resource allocation uses medical urgency as its framework. Australia also allows for directed living donation: a potential donor, most commonly a close family member, may elect to donate his or her kidney or liver lobe to another person with chronic organ dysfunction, without financial compensation. ¹⁷ This predominantly egalitarian approach to resource allocation in organ donation prevents unequal distribution of both organs and the associated healthcare. It is estimated that a single kidney transplant costs approximately AUD 63,000. ²³ If organ donation were subject to financial influence, there would be significant temptation to rationalise the distribution of organs to those with the capacity to pay the high costs. ²⁴ Australia has no facility for people to pay for organs and does not support transplant tourism in principle. ²⁵

Libertarianism is a movement within health and society as a whole that emphasises individual freedom and the right to determine one’s own access to healthcare based on the ability to pay for it. ¹⁴ Hippen ³ promotes the concept of a regulated market for kidney donation, suggesting that current waiting list practices are not egalitarian and that preference is invariably directed towards younger, healthier patients with brighter prognoses.

Seemingly dismissing the UN Declaration (1948) on access to healthcare, Hippen ³ suggests that if cash seems unethical, perhaps donors could be rewarded with medical insurance. Interestingly, the greatest promoters of a commercial organ market are those who believe predominantly in the commercial capabilities of the free market. ⁴ There is little thought given to the exploitation of the donors – who are almost always marginalised or impoverished. ⁷ Hippen rejects the idea of using the poor in developing nations and insists domestic commercialisation is somehow ethically superior. The fact that the target donor population are bereft of health insurance suggests the American underclass is being considered for donation for anyone who can afford to pay.

Wilkinson ²⁶ offers a range of practical solutions to moral and ethical concerns about commodification of body parts, suggesting a reasonable point may be found along the continuum between prohibition and a free market with private traders. The notion of a state-regulated market, with price capping and geographical restrictions (as occurs in Iran; only Iranian nationals are able to participate in the kidney market), is offered as some practical protection from exploitation and the flourishing of a black market.

Radcliffe-Richards ²⁷ in her exploration of the body parts market critiques the notions of uninformed consent and paternalism, and references the historical ineffectiveness of prohibition as important considerations in the argument against any organ selling. Radcliffe-Richards ²⁷ speaks of the inviolability of legal consent and argues that one’s consent essentially legitimises an act that may otherwise be a violation of the person. While this is soundly supported by the rule of law, it ignores, as the law often does, the circumstances of marginalisation and disempowerment. The argument on informed consent takes on a moral flavour when the person to be violated is situated in circumstances that may heavily influence the decision-making process. There is an absence of any sense of social justice in consent case law. The author sees this reluctance to accept the informed consent of impoverished potential organ sellers as a remnant of paternalism and ‘out of place in a liberal society’. ²⁷ The concept of a liberal society is a social construct, forever reproducing itself and in constant flux, and therefore not representative of all societies, and certainly not the societies where organ brokering is occurring.

Finally, Radcliffe-Richards’ ²⁷ comments on prohibition are eloquent and pragmatic, requiring serious consideration. The author argues that prohibition is notoriously ineffective, does not stop commercial transactions and frequently renders them even more unsafe and open to exploitation. The prohibition throughout history of transactions for commodities such as alcohol, drugs and sexual acts clearly supports Radcliffe-Richards’ argument.

The argument of Radcliffe-Richards et al. ²⁸ is that organ selling by the poor in developing nations offers them a unique chance to release themselves from the cycle of poverty. This devotion to libertarianism again affirms that there is no such ideal as a universal right to healthcare. Joralemon and Cox ²⁹ argue that acknowledging the exploitation of the economically desperate should not therefore enable an expansion of such exploitation. This is highly unethical, encouraging the poor to enter into a Faustian pact, exchanging health for survival. ²⁹

Informed consent

The market for transplant tourism and organ selling is supported by the poor in developing nations including Pakistan, India and The Philippines. ³⁰ Moazam et al. ³¹ performed an ethnographic study on vendors in Pakistan, finding most donors were between 20 and 40 years, illiterate and impoverished. Navqui et al. ³² found 69% of the vendors interviewed in Pakistan were slaves, and 90% were illiterate. These disturbing statistics stand in direct opposition to the fundamental ethical values of informed consent and autonomy in health decisions. The authors found very little research had been completed on the health impact of organ removal on the vendors and suggest that there is little or no medical follow-up for the donors. ^{32 –34}

The concept of informed consent is integral to an individual’s self-determination and participation in wellness. Katz ³⁵ asserts that informed consent is important because the patient must understand the variety of options available to him or her, and the healthcare profession has a moral imperative to help the patient understand the benefits and the harm that may come from his or her choices.

Beauchamp and Childress ¹⁴ posit that true informed consent requires a number of key principles. Concepts of particular relevance here include comprehension and voluntariness. Given the statistics of Navqui et al. ³² and Moazam et al., ³¹ illiteracy and slavery were prominent. One must ask, then, how thorough has the explanation of risk, harm and outcome been to a group of people who are unable to read or seek further opinion? Voluntariness is the degree to which an individual is under another’s influence. ¹⁴ If organs are being sold by slaves, it is then reasonable to conclude that economic desperation and the likely risk to free agency have reduced the person close to involuntary in their actions. ³⁶

Resource allocation

The creation of an organ market for foreign recipients impacts the developing nation’s ability to service the needs of its own population. If organs are being sold abroad, people on the waiting list in the donor’s country are being sidestepped in favour of foreign wealthy purchasers. ^37,34 This corruption of just resource allocation is abhorrent to the nursing profession. Fry and Johnstone ³⁸ argue that nurses must ask themselves whether they believe there is a fair allocation of their nursing resources among those under their care. In other words, nurses participating in healthcare must recognise the importance of fair and just resource allocation. An important point to consider is that nurses do not only consider the individual health needs of select individuals but all individuals. If a nurse believes in just resource allocation and a policy that results in benefit for the greatest number, she or he cannot believe in the commercialisation of organ transplant because this benefits select individuals: those with the ability to pay for their organ.

The nursing perspective

Fry and Johnstone ³⁸ consider a Code of Ethics in Nursing to represent our professional values and reflect our moral standpoint on issues affecting the individual, the profession, the community and social justice. Butts ³⁹ suggests that healthcare professionals should adopt a position of ethical objectivism, where universal principles apply, rather than ethical relativism, where one may accept differences in moral or ethical behaviours between cultures and societies. This is important in the question of transplant tourism, as it requires nurses to take a global, social justice approach to ethical decision making. It may not be happening to my patient, but it is happening to many patients who have no voice and no access to care, to informed consent, to just resource allocation.

The ANMC Code of Ethics value statements make several explicit references to the value nurses must place on the dignity of human life and informed consent. The first statement from the Code of Ethics asserts the value of quality nursing care and speaks of the importance of shaping social policies in the name of social justice and a fair sharing of resources for all Australians. ⁹ An important point here is that our code should not stop at Australia’s shores. We may believe transplant tourism would not happen in our country, on our watch; The Secretary General of Amnesty International rates Australia’s Indigenous population as impoverished, devoid of basic human rights and living in conditions akin to a developing nation. ⁴⁰ It is not too far a leap to see this community open to exploitation.

Value Statement 4 affirms the right of all people to access basic health and nursing care, and the equitable provision of such care. This statement speaks of resource allocation and our responsibility as nurses to advocate for reasonable distribution of healthcare. This value statement complements the ICN Code of Ethics statement 9.4, ¹⁰ which urges nurses to act as agents for social reform. Butts ³⁹ sees this as a call for nurses to act globally, helping to shape healthcare policy to allow for equitable, accessible care for all people. The nursing profession is uniquely placed to speak out against the exploitation of the world’s poor by organ procurement brokers. Nurses can speak for the importance of distributive justice and urge governments and insurers to reject practices that result in significant inequalities of outcome for vendor and recipient.

The ANMC ⁹ and the ICN ¹⁰ have clear statements on the importance of informed consent and the preservation of human dignity. An important point here in the ANMC Value Statement 5 is that patients have the right to verify the ‘meaning and implication’ of information provided (p. 8). Marginalised people who are asked or at worst coerced into selling their organs have little opportunity to clarify information.

If as nurses we believe that informed consent requires the opportunity to explore and clarify, then we must acknowledge as a profession that the organ procurement market disallows this, and ethically this is unacceptable. Finally, the ANMC Code of Ethics and the ICN Code of Ethics express the value of every human’s dignity.

ANMC Value Statement 3 asserts the fundamental right to health and the profession’s role in ‘promoting and protecting’ those rights. This follows then that nurses must acknowledge the abuse of human rights in transplant tourism and adopt a public stance against any practice which removes such a fundamental right to any person. Organ selling forces people with minimal choices into trading health – a basic human right – for sustenance, another basic human right. ⁴¹ Fry and Johnstone ³⁸ consider nurses have a particular responsibility in the safeguarding of human rights and human dignity and should understand that abuses may take subtle forms. An argument that organ vendors act autonomously and with free agency is flawed because they are trading their right to informed consent, and appropriate healthcare, and are being excluded from a fair and just process of resource allocation because facilities in their country are being used by wealthy foreigners willing to pay. ⁴

In conclusion, the nursing profession needs to rather urgently adopt a position on the ethical implications of transplant tourism. Currently, the ANMC, the Royal College of Nursing Australia, The Royal College of Nursing (UK) and the American Nurses Association do not have position statements on transplant tourism. This disturbing fact diminishes us as a force for change; it diminishes our role as advocates for the most marginalised in our world to have access to care and to choice and excludes us from a very contemporary real debate about the mismatch of organ demand and supply in our own communities. As a profession, we must have a voice in health policy and human rights, and according to our Code of Ethics in Australia and around the world, act to promote and protect the fundamental human right to healthcare and dignity.