Toolkit on the Investigation

and Prosecution of
Traff icking in Persons
for Organ Removal

This project is funded by the European Union

 TOOLKIT ON THE INVESTIGATION AND PROSECUTION
OF TR AFFICKING IN PERSONS FOR ORGAN REMOVAL

© United Nations 2022. All rights reserved worldwide.

The designations employed and the presentation of material in this publication do not imply
the expression of any opinion whatsoever on the part of the Secretariat of the United Nations
concerning the legal status of any country, territory, city or area, or of its authorities, or concerning
the delimitation of its frontiers or boundaries.

This publication was produced with the financial support of the European Union, within the
framework of a joint initiative by the European Union and UNODC being implemented in
partnership with IOM, the Global Action against Trafficking in Persons and Smuggling of Migrants
([Link]). The views expressed herein can in no way be taken to reflect the official opinion of the
European Union or the United Nations including UNODC or IOM.

This publication has not been formally edited.

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TOOLKIT ON THE INVESTIGATION AND PROSECUTION
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CONTENTS

Module 2: 4
1. International transplant framework and applicable regulatory safeguards 4
A. Living organ donation - minimum criteria 5
B. Valid consent to organ donation 6
C. Prohibition of organ trade 7

2. Trafficking in Persons for Organ Removal as defined by the UN Trafficking Protocol 9

A. An overview 9
B. Act 11
C. Means 11
D. Consent 13
E. Exploitation 14

3. Organ trafficking 14
A. Differences and overlaps between the trafficking in persons and the organ trafficking frameworks 15
B. Consequences of the potential overlap 16
C. Complementary approach 17

4. Other applicable criminal law provisions 19

A. Participation in an organized criminal group 19
B. Corruption 19
C. Money laundering and financial crimes 19
D. Organ laundering – insurance fraud and abuse of health care system 20
E. Other crimes 20

Endnotes 21

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MODULE 2:
INTERNATIONAL LEGAL FRAMEWORK
ILLICIT ORGAN REMOVAL AND ORGAN
RELATED CRIMES

1. INTERNATIONAL TRANSPLANT of financial gain or comparable advantage, each

FRAMEWORK AND APPLICABLE category carries its own set of additional rules and
safeguards.
REGULATORY SAFEGUARDS
At the international level, efforts to ensure
States that offer transplant care must introduce ethical living organ donation, and to address
legislation covering organ removal and unethical organ removal, are coordinated by
transplantation. At the core of the existing framework several intergovernmental organizations and
on transplantation, uniformly accepted around the professional associations, including the World Health
world, are the principles of respect for autonomy Organization (WHO), the World Medical Association,
(aimed at protecting the dignity and other interests The Transplantation Society (TTS), and the Council
of the persons involved) and the principles of justice of Europe. International transplant guidelines and
and altruism (intended to safeguard the integrity of ethical codes have been developed that lay down
the transplant system). These principles regarding minimum standards. These instruments, including
organ donation and transplantation are enshrined the WHO Guiding Principles 1, the Council of Europe
in international, regional and national legal Convention on Human Rights and Biomedicine 2 and
instruments and guidelines. its Additional Protocol concerning Transplantation, 3
World Medical Association statements, 4 encouraged
There are two sources of organs for transplantation: countries to introduce two sets of provisions into
deceased donors and living donors . While their transplant regulation two sets of provisions.
removal of organs from deceased donors and The first concerns the establishment of conditions for
living donors are guided by the same principles, organ donation, including valid consent from living
namely valid consent or authorization and absence

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donors, and the prohibition of organ removal in

• if the donor has legal capacity, in
breach of these conditions. The second focuses on
accordance with national law, although
the prohibition of organ trade, banning commercial
in some countries organ removal from
dealings. The first legally binding instruments that
a minor or legally incompetent adult is
grounded these two minimum standards were
allowed in narrowly defined cases;
introduced in European instruments, namely the
Council of Europe Convention for the Protection of • if the donor has given valid consent (see
Human Rights and Dignity of the Human Being with subsection Section 1.b);
regard to the Application of Biology and Medicine:
• living donors:
Convention on Human Rights and Biomedicine, the
Additional Protocol to the Convention on Human • should not receive any monetary payment
Rights and Biomedicine concerning Transplantation or other reward of monetary value (except
of Organs and Tissues of Human Origin and for the reimbursement of reasonable and
the Directive 2010/45/EU of the European verifiable expenses incurred as a result of
Parliament and of the Council on Standards of donation, such as loss of income);
Quality and Safety of Human Organs Intended for
• should, as a rule, have a close personal
Transplantation.
relationship with the recipient: they should
be genetically or legally (e.g. spouses)
Both sets of provisions, as established by the
related, although in some countries
international instruments, namely valid conditions
donation to an emotionally related (e.g.
for living organ donation, and the prohibition of
close friend) or an unrelated donor is
organ trade are discussed in detail below as they
allowed, or paired exchange protocols
are relevant in the assessment of the legitimacy
have been adopted (allowing incompatible
of organ removal. Their precise formulation and
donors to donate to an unrelated recipient
application might vary among states, subject to
in exchange for an organ for their
domestic legislation. A violation of the valid consent
intended, related recipient);
provisions may not be sufficient on its own to
establish trafficking in persons, but it is essential to • the need to ensure professional care and
proving trafficking in persons for organ removal. follow-up of donors;
• the need to strictly apply and monitor criteria
for donor selection and to transplant organs
A. Living organ donation - minimum based on clinical criteria and ethical norms,
criteria not financial considerations;
The WHO Guiding Principles, considered to be the • the need for donation and transplantation
most important international soft law instrument activities to be transparent and open to
in shaping transplant legislation around the world, scrutiny, while protecting the privacy of
focus on informed and voluntary consent, medical donors and recipients;
follow-up and standardized donor selection
• physicians and other health professionals
criteria to ‘‘guard against coercion of the donor
should not engage in transplantation
or commercialism’’. In response to the challenges
procedures, and health insurers should not
caused by an increasing shortage of organs and
cover such procedures, if the organs have
advancements in transplant technologies the WHO
been obtained through coercion or deception
1991 Guiding Principles have been updated in
of, or payment to, the donor;
2010.
• advertising the need for or availability
The criteria for living organ donation are as of organs, with a view to offering or
follows : seeking payment to individuals for their
organs, should be prohibited. Brokering of
• removal is only allowed: organs that involves payment should also
• for the therapeutic benefit of another be prohibited. (This does not affect the
person; legitimate promotion of altruistic donation of
organs by means of advertisement or public
• if no alternative therapeutic treatment of appeal in accordance with domestic law);
comparable effectiveness exists and no
suitable organ from a deceased donor is • all health care facilities and professionals
available; 5 involved in organ removal and
transplantation should be prohibited from
• if the health risks to the donor are receiving any payment exceeding a justifiable
reasonable; fee for the services rendered.

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Informed consent is a multi-step process consisting

B. Valid consent to organ donation
of information gathering and sharing that seeks
In line with WHO Guiding Principle 3, living organ to ensure that the prospective donor has the
removal is only allowed if the donor has given valid capacity to understand the procedure and to assess
consent. whether that person’s consent to organ removal
meets the required standards. 8 Considering the
For consent to be valid, it should be given before serious nature of the procedure and the amount of
the organ is removed and it should be informed, information given to the potential donor, sufficient
voluntary, explicit and specific. time is needed to guarantee adequate disclosure
• Intended donors should be informed about and understanding . While it is possible to obtain
the purpose and nature of the surgery and informed consent for donation within a relatively
of the possible risks and consequences of brief period (a few days), this is not recommended
organ removal to the donor’s health. This practice. The informed consent process often
information needs to be complete, objective takes weeks or months. Similarly, there might be
and understandable and be provided by a an emergency situation where living donation is
healthcare professional. Prospective organ required to be expedited, and where the evaluation
donors should be legally competent and of the donor must be undertaken within a 48-hour
capable of weighing the information. period. The Transplantation Society considers this
• In order for consent to be voluntary , the to be acceptable in centers able to adequately
person needs to consent willingly and free of undertake the required evaluation in such a short
any undue influence, coercion or deception. time frame. 9
Furthermore, prospective organ donors
should have the right to withdraw consent, Information should be tailored to the educational
unless the decision puts the recipient in acute and literacy level of the intended donor, and
danger if the transplant does not proceed. provided with the help of multiple strategies,
There is a slight deviation from the WHO including the use of non-technical language
Principle regarding the withdrawal of consent (when possible replacing medical terminology with
in the Council of Europe Convention on simpler terms and concepts) and, if needed, visual
Human Rights and Biomedicine. Article 5 materials to supplement written materials. When
stipulates that “(…) the person concerned the potential donor does not speak the official
may freely withdraw consent at any time language (for instance because the transplant takes
prior” even when local anesthetic has place in a foreign country), the assessment needs
been administered and the procedure has to be conducted with the assistance of professional
commenced. interpreters and culturally competent.
• Additional safeguards require that consent
Family members should not be used as
has been given expressly and specifically ,
interpreters, since they may not be impartial.
either in written form or before an official
More importantly, in the case of an illicit organ
body. 6 This implies that consent is clearly
removal, there is a real risk that traffickers pose
given and refers to an identified organ,
as relatives.
and that removal is only allowed after final
authorization by an independent body. This
The WHO Guiding Principles, and the other
could be achieved via a multidisciplinary
international legal instruments and guidelines on
commission at the level of transplant
transplantation, provide that in the case of living
hospital, a dedicated national or regional
organ donation, particularly by unrelated donors, a
commission, or a judge, although in some
psychosocial evaluation is required to ensure that
countries the decision is left to the transplant the donor has not been coerced and no financial
team itself. benefits have been received in exchange for
• To preserve the transparency of donor consent . 10
evaluation and to ensure the voluntary
nature of organ donation Article 12 of the The WHO Principle emphasizes the necessity
Additional Protocol further stipulates that of genuine and well-informed choice, which
organ donors ‘shall be informed of the right requires complete, objective and locally relevant
to independent advice about such risks by information. In light of the criteria discussed
a health professional who is not involved above, it is suggested that vulnerable persons
in the organ removal or subsequent should be excluded from donation as they ‘are
transplantation procedures’. incapable of fulfilling the requirements for
• Professional care of donors must be ensured, voluntary and knowledgeable consent’. 11
including well organized follow-up, and
selection criteria for donors should be
scrupulously applied and monitored. 7

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i. Persons lacking capacity to consent law in most states. It can either be included in the
transplant law or in penal law. The prohibition
The WHO Guiding Principle 4 provides that organ on organ trade is the result of growing concerns
removal should not be carried out on ‘any legally about prosperous patients travelling to developing
incompetent person’. Capacity refers to the donor’s countries to buy a kidney from desperately poor
ability to understand and appreciate the nature of donors. 16 According to the commentary to WHO
donation, its risks and consequences. The removal Guiding Principle 5, payment for organs “is likely
of organs from a person who does not have to take unfair advantage of the poorest and most
the capacity to consent is also prohibited under vulnerable groups, undermines altruistic donation,
European legal instruments, 12 unless in exceptional and leads to profiteering and human trafficking.
circumstances and under the protective conditions Such payment conveys the idea that some persons
prescribed by law. 13 The capacity to consent should lack dignity, that they are mere objects to be used by
be understood in the context of organ removal for others.” 17 Consequently, the WHO Guiding Principle
transplantation and applies to the removal of an 5 declares that:
organ from any person, whether adult or minor,
who, according to domestic law, has the capacity to “The sale of […] organs for transplantation
consent to that kind of procedure. 14 by living persons, or by next of kin, should be
banned. National laws should therefore ensure
The donor’s capacity is evaluated by the transplant that any gifts or rewards do not become a
team and in particular by the psychiatrist, physician, disguised form of payment for donation”
and social worker. If during the assessment the
potential donor is found to lack the capacity to Mirroring the concern regarding exploitation of
make a decision about donation, that person will vulnerable persons, the preamble to the Additional
be disqualified as a donor. In circumstances where Protocol to the Convention on Human Rights
the donor’s capacity is not clear, or if the transplant and Biomedicine acknowledges the risks posed
team cannot reach a decision about the donor’s to vulnerable persons by the shortage of legal
capacity the case is usually referred to the hospital’s donations. It states that there is a need to protect
ethics committee. individual fundamental rights and freedoms and to
prevent the commercialization of parts of the human
The Ethics Committee’s (also referred to as body in the context of organ removal, exchange
hospital ethics committee) role is to guide and allocation. Consequently, payment for organs is
the policies and procedure related to organ prohibited by Article 21 of the Convention on Human
donation, procurement, distribution, allocation, Rights and Biomedicine which reads that ‘the human
and transplantation to ensure that they are body and its parts shall not, as such, give rise to
consistent with ethical principles. With regards financial gain’, and in Article 21 of the Additional
to living organ donations, the Ethics Committee Protocol which states that ‘the human body and its
will review transplant documentation, and results parts shall not, as such, give rise to financial gain
of a comprehensive assessment of the organ or comparable advantage’. The Additional Protocol
donor and the recipient before approving the further stipulates that advertising the need for, or
transplant. For non-related living donors, the availability of, organs, with a view to offering or
Ethics Committee might also interview the organ seeking financial gain or comparable advantage,
donor to ensure that the consent is valid and shall be prohibited (Article 21(2)).
there is no payment involved.
At the level of the European Union, the prohibition
on making the human body and its parts a source of
ii. Organ removal from children financial gain features in the Charter of Fundamental
Rights of the European Union. 18 Similarly, Article 13
Organ removal from minors is generally prohibited of Directive 2010/53/EU establishes a prohibition
with narrow exceptions under domestic law in few of organ trade, stating: “Member States shall ensure
countries. Where it is allowed, states are encouraged that donations of organs from deceased and living
to include protective measures to ensure that donors are voluntary and unpaid. The principle of
organ removal is in the best interests of the minor non-payment shall not prevent living donors from
(e.g. as a last resort to save the life of a sibling), receiving compensation, provided it is strictly limited
and the minor’s opinion should be taken into to making good the expenses and loss of income
consideration. 15 related to the donation. Additionally, the directive
prohibits “advertising the need for, or availability
of, organs where such advertising is with a view to
C. Prohibition of organ trade offering or seeking financial gain or comparable
advantage”.
The prohibition on using financial inducements in the
context of organ donation is introduced in domestic

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The ban on paying for organs should apply to The last two practices are directly relevant to the
all individuals, including transplant recipients trafficking in persons framework, in the sense that
who attempt to circumvent domestic regulations they provide the legal basis to prosecute these
by travelling to states where prohibitions on practices in case of exploited vulnerable donors,
commercialization are not fully or properly enforced. and it provides a mechanism for protection and
In 2008, an international summit on transplant assistance to victims of TIP for OR.
tourism and organ trafficking was convened by the
Transplantation Society and the International Society Similar efforts to promote ethical practices in organ
of Nephrology 19 in Istanbul. Over 150 scientists, donation and transplantation, and protecting
ethicists, members of scientific and medical vulnerable persons from illicit organ removal,
bodies and government officials from around the were undertaken in 2008 in Asia. At the initiative
world adopted The Declaration of Istanbul on of the National Taiwan University, the “Asia
Organ Trafficking and Transplant Tourism. 20 This Task Force on Organ Trafficking” developed the
landmark document urges states “to take measures Recommendations on the Prohibition, Prevention
to protect the poorest and vulnerable groups from and Elimination of Organ Trafficking in Asia (Taipei
‘transplant tourism’ and the sale of tissues and Recommendations). 25
organs, including attention to the wider problem
of international trafficking in human tissues and
organs.” 21 To aid in this task it sets out a number i. What kind of payment is allowed?
of principles, including on equitable allocation of
organs, reimbursement of costs, and measures to Some forms of monetary transaction are permissible
ensure the welfare of the donor, including exploited in a legitimate transplant. In accordance with
organ donors. The Istanbul Declaration also WHO Guiding Principle 5 and Article 21 of the
formulated and defined three concepts with regards Council of Europe’s Additional Protocol concerning
to unethical organ donation and transplantation: Transplantation, the principle that “the human body
organ trafficking, transplant tourism and transplant and its parts shall not, as such, give rise to financial
commercialism. The last two are directly relevant to gain or comparable advantage” does not prevent
trafficking in persons. In 2018, at the International payments which do not constitute a financial gain or
Congress of The Transplantation Society in Madrid, comparable advantage.
an updated version of the Istanbul Declaration
was presented, 22 which contains a more clearly The details of what is considered a financial gain
structured set of principles for policymakers and or comparable advantage are left to states to
health professionals working in organ donation and decide, but three forms of payment are generally
transplantation. It also provides updated definitions allowed:
of the key terms.
1. Reasonable compensation of living donors
• Organ trafficking is understood as a number for justifiable expenses incurred during or
of organ-and transplant -related offences as a result of the organ removal or other
as defined under the Council of Europe parts of the transplant process , such as
Convention against Trafficking in Human related medical examinations. Compensation
Organs (2015). 23 may, for instance, cover expenses of travel,
housing and loss of earnings. This type of
• Travel for transplantation refers to “the
compensation is allowed to avoid possible
movement of persons across jurisdictional
financial disadvantage which may otherwise
borders for transplantation purposes. Travel
occur, and to guarantee that living organ
for transplantation becomes transplant
donation is a financially neutral act for
tourism, and thus unethical, if it involves
the organ donor. 26 A symbolic gesture of
trafficking in persons for the purpose of
gratitude is not considered as a financial
organ removal or trafficking in human
gain.
organs, or if the resources (organs,
professionals, and transplant centers) 2. Payment of a justifiable fee for legitimate
devoted to providing transplants to non- medical or technical services performed as
resident patients undermine the country’s part of the transplant process . Such services
ability to provide transplant services for its might include the removal, transportation,
own population.” preparation, preservation, quality control,
storage and implantation of an organ.
• Transplant commercialism is defined as
“a policy or practice in which an organ is 3. Compensation in case of undue damage
treated as a commodity, including by being resulting from organ removal. Undue
bought or sold or used for material gain”. 24 damage refers to any harm which is not
a normal consequence of a transplant
procedure.

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Other relevant terms can be understood as: The UN TIP Protocol is one of the most important
international tools that requires Parties to establish
• “ compensation ” is the reparation strictly as criminal offences specific activities that involve
limited to reimbursing for the expenses and the exploitation of vulnerable persons. It is also one
inconveniences related to the donation, 27 of the most widely ratified criminal law instruments.
• “ incentive ” is an inducement for donation with Currently, 180 States Parties have ratified the UN
a view of seeking or offering financial gain or TIP Protocol. 32 In the great majority of countries,
other non-monetary benefits. 28 organ removal is included as a possible form of
• comparable advantage may include gifts in exploitation in the definition of trafficking in persons.
kind (e.g. house, car, holiday) or benefits such In a few countries, such as the United States, this
as employment, educational opportunities, or is not yet the case. 33 In other countries, such as
medical care or health insurance coverage where Hungary, organ removal is included in the criminal
this would otherwise not be available to the law provisions on trafficking in persons, but as
donor. an aggravating circumstance that attracts higher
penalties. 34
In 2018 a guideline regarding the meaning of
“financial gain or comparable advantage” was The definition of trafficking in persons as introduced
adopted by the Council of Europe. It provides in the UN TIP Protocol is replicated in other
states with assistance in determining when international/regional instruments such as the
material benefits would violate the prohibition of Council of Europe Convention on Action against
remuneration or would violate the prohibition of Trafficking in Human Beings (the Council of Europe
illicit solicitation and recruitment of an organ donor Convention against Trafficking in Human Beings)
or recipient. 29 The 2018 update of the Istanbul and the European Union Directive 2011/36/EU on
Declaration also provides additional guidance to Preventing and Combating Trafficking in Human
states and professional and health authorities with Beings and Protecting its Victims (EU Trafficking
regards to achieving so-called ‘financial neutrality’ Directive). Both European instruments strengthen
in organ donation, which aims to ensure that donors the protection of victims afforded by the UN TIP
and their families neither lose nor gain financially as Protocol. Another notable difference between the
a result of donation. 30 Council of Europe Convention against Trafficking
in Human Beings and the UN TIP Protocol is that
Article 19 of the Convention invites states to impose
liability on persons who ‘use the services of a victim
2. TRAFFICKING IN PERSONS FOR of trafficking’, with the knowledge that the person
ORGAN REMOVAL AS DEFINED BY THE is a victim of trafficking. Accordingly, recipients of
a trafficked organ could be held liable by States
UN TRAFFICKING PROTOCOL Parties to this Convention. However, the decision
to prosecute organ recipients, who often also find
themselves in a desperate position, is a difficult one.
A. An overview Currently, there is no consensus among criminal
Because of a growing number of cases involving justice practitioners as to whether criminalize organ
removal of organs from vulnerable persons through recipients in TIP for OR cases. This may change
use of deception and force, illicit organ removal based on the specific context of each case. For
was recognized as a form of exploitation and example, if the organ recipient is directly involved
criminalized in the Protocol to Prevent, Suppress in recruitment of the donor or controls that person
and Punish Trafficking in Persons supplementing the through illicit means, the recipient can be considered
United Nations Convention against Transnational a trafficker. This issue is discussed in depth in
Organized Crime (Organized Crime Convention). 31 Module 5.
Article 3(a) of the UN Trafficking Protocol spells out
three elements required to establish the offence: It is worth noting that states have a certain flexibility
in transposing the UN Trafficking Protocol into their
1. the act - that is, the recruitment, transportation, domestic legislation, resulting in some variations
transfer, harbouring or receipt of persons; in the composition of the definition of trafficking
2. the means - that is, the threat or use of force in persons. For example, some of the means listed
or other forms of coercion, of abduction, of in the international legal instruments on human
fraud, of deception, of the abuse of power or trafficking may have been omitted from the national
of a position of vulnerability, or of the giving or definition. For instance, in Belarus and India, the
receiving of payments, or benefits to achieve the means of abuse of a position of vulnerability has
consent of a person having control over another not been included. 35 Additionally, many States
person; have expanded their legislation beyond removal of
3. the purpose of exploitation, including organ organs to include tissues, cells and other body parts,
removal. including fluids.

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In general, to prove trafficking in persons for organ

removal all three elements of the definition must
be established: the act (donors were recruited,
harboured and/or received, often also transported
and transferred); the means (the acts were secured
through fraud (relating to payment, medical risks,
consequences, follow-up care, etc.), sometimes also
through force and coercion, often through deceit
and abuse of a position of vulnerability); and the
purpose (the acts were undertaken for purposes
of exploitation by removal of an organ). There is
no requirement that the envisaged exploitation
(organ removal) had in fact occurred. The crime of
trafficking is established once the relevant elements
of act and purpose (or, in the case of children,
act only) are made out along with an intention to
exploit. 36

Table of examples
Act Means Purpose

Example in TIP for donor-victims were: the acts were secured for removal of an organ.
OR context recruited, harboured and/ through threat, use of The organ removal does
or received, often also force, coercion, fraud, not have to occur
transported, or transferred deceit (relating to
from their place of residence payment, medical risks,
to medical facilities, safe consequences, follow-up
houses, hotels, within a care), abuse of a position
country or taken across the of vulnerability, or power,
border or as a form of payment
of debt or smuggling fees,
etc.
Example of child minors are: received, as per the UN TIP Protocol, for removal of an organ.
trafficking for OR transported, and transferred when the victim is under The organ removal does
from their place of residence 18 years of age then there not have to occur.
to medical facilities, safe is no requirement to prove
houses, hotels, within a the means element.
country or taken across the
border

When the organ is removed from a child 37 (that is Beyond the Trafficking in Persons offence
a person below the age of 18) it is only necessary
States Parties to the UN TIP Protocol are, in
to prove the act and the purpose of exploitation
accordance with Article 5, under the obligation to
and not that any of the illicit means had been used.
additionally criminalize attempting, participating
The prohibition of organ removal from children is
in, organizing and directing other persons in
also clearly established in the Optional Protocol
the commission of trafficking in persons for the
to the Convention on the Rights of the Child on
purpose of organ removal. The Organized Crime
the Sale of Children, Child Prostitution and Child
Convention (Article 5(1)(a)) also requires States to
Pornography. 38 However, the removal of a child’s
criminalize participation in a criminal group. 39 (For
organs for legitimate medical or therapeutic reasons,
more information see Section 4 - Other Applicable
under strict circumstances prescribed under the law,
Criminal Law Provisions).
cannot form an element of trafficking if the legal
representative (parent or guardian) has provided
Article 10 of the Organized Crime Convention also
valid authorization.
requires States to establish liability in respect of
both natural persons and legal persons, thereby
extending the reach of criminal and civil law to the
medical companies and other establishments (e.g.

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insurance companies) that are involved in trafficking across borders and includes “any kind of
in persons for the removal of organs. (For more handing over or transmission of a person
information see Section 4. Other Applicable Criminal to another person” 44 from one location to
Law Provisions). This liability can be criminal, civil or another. There might be multiple acts of
administrative. Under Article 10 (3) of the Organized movement of the organ donor during the
Crime Convention, the liability of legal entities must trafficking, for example from a village to
be established without prejudice to the criminal a testing medical facility, from one city to
liability of the natural persons who committed another city or country, through private or
the offences. The liability of natural persons who public mode of transportation.
perpetrated the acts, therefore, is in addition to any • Harbouring refers to providing
corporate liability and must not be affected at all by accommodation or housing to a donor in
the latter. 40 whatever way during the transit to their final
destination, usually where the exploitation
occurs (e.g. transplant clinic or other medical
B. Act facility).
• The receipt/reception of persons could occur
Trafficking in persons should be understood as a in a situation when an accomplice, or other
combination of “an action; a means by which that trafficker meets donors on their journey and
action occurs or is made possible; and a purpose to gives them further information, delivers them
the action, which is specified as exploitation.” 41 In to another place, or receives them in the
the case of trafficking of adults, the “action” element medical clinic or other location where the
is one part of the actus reus of trafficking. It is not organ removal will take place. 45
enough for those activities to occur on their own
to prove the existence of the act for the purpose of
establishing trafficking in persons for organ removal.
They need to be linked to or undertaken in a specific C. Means
way (means) and with the intention to remove an
organ (purpose of exploitation)’. 42 Understanding, recognizing, and identifying the
various means listed in the trafficking in persons
A person becomes trafficked from the moment definition through which a person is trafficked
when one of the acts envisioned in the definition of is essential to successful prosecution. The UN
trafficking in persons is fulfilled (i.e. recruitment, TIP Protocol requires a clear link between the
movement, harbouring) through illicit means, even ‘act’ element and the ‘means’ of trafficking.
if the victim is already aware that he or she will be Consequently, it is necessary to establish that a
exploited. All elements combined make trafficking in third party has used one or more illicit means in
person into a process. order to recruit, transfer, harbor, or receive that
person with a view to having an organ removed. The
• Recruitment refers to ‘any activity leading UNODC issue paper on the abuse of a position of
from the commitment or engagement vulnerability confirms that ‘recruitment’ is the act
of another individual to his or her that is most frequently cited in relation to abuse of
exploitation.’ 43 In cases of trafficking in a position of vulnerability, but that it is not the only
persons for organ removal recruitment can relevant act. It is very often a supporting means that
occur in a number of ways and through a strengthens other, more direct means used to recruit
variety of means. Potential organ donors persons. 46 Some of the most common means are
might be targeted individually by recruiters described below.
or brokers who are part of their community
(village, neighborhood). They might be • The threat or use of force and abduction are
recruited through advertisements in local rather self-explanatory means, often deriving
newspapers or, through the use of digital their meaning from domestic criminal law
technologies such as the Internet, and social provisions. Threat or use of force indicate that
media. Organ donors might also be recruited the person is harmed or threatened with harm
by medical staff working in hospitals in order to obtain his or her cooperation or
or dialysis centers, or directly by organ participation in the trafficking process.
recipients, for instance because they have • Fraud refers to the intentional misrepresentation
an emotional, or professional relationship. of the financial aspects of a transaction. In the
Alternatively, organ donors can approach context of organ removal, it is an element that
brokers directly, or advertise their willingness often is of major importance, since donors might
to engage in paid donation, usually via the not be paid the agreed sum, or at all. 47
Internet.
• Coercion in the context of trafficking in persons,
• Movement or transportation of the organ
is often used as an umbrella term, encompassing
donor may be within domestic borders or
the use of violence, threats and deception, as

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OF TR AFFICKING IN PERSONS FOR ORGAN REMOVAL

well as abuse of a position of vulnerability. 48 their ignorance or misconceptions. 56 As a result,

The 2020 UNODC Model Legislative Provisions it is very probable that deception occurs when
states that “psychological pressure” is included victims were considering or had initially been
as a form of coercion that would satisfy this willing to have an organ removed in exchange
aspect of the means element. 49 In the context of for some benefits.
trafficking in persons for organ removal, debt
• With regards to the means of ‘abuse of power ’ ,
bondage and extortion are used as forms
the UN TIP Protocol does not offer a precise
of coercion on organ donors to subject them
definition. During the drafting stage of the
to organ removal. 50 Coercion could also be
Protocol, while deliberation over the term
understood as a result of the manipulation of an
abuse of authority” (an earlier, alternative
individual in a decision-making process when
formulation), the drafters noted that the term
one individual exerts power or influence over the
“should be understood to include the power that
other to gain consent. When an organ donor has
male family members might have over female
been offered a monetary benefit in exchange
family members in some legal systems and
for his or her organ, this offer might be coercive
the power that parents might have over their
“because it requires unjustifiably disadvantaged
children.” 57 It has been noted that ‘in some
circumstances in order to be an effective
legal systems, abuse of power can only ever
incentive.” 51 Such method of recruitment could
relate to the conduct of public officials. In other
also be considered as abuse of a position
legal systems the concept is a much broader
of vulnerability . A monetary offer is often
one, encompassing the full range of possible
quite attractive when there is a pre-existing
relationships of dependence: from family-
vulnerability on the part of the donor. It is
based relationships to those with employers,
abusive because the traffickers know that donors
guardians and caregivers. In countries where
cannot reasonably refuse it when they struggle
abuse of power was either not present or was
with severe debt, poverty or unemployment.
undefined in the relevant law, (…) there was
• The concept of abuse of a position of general consensus that there is an overlap
vulnerability (APOV) has been accepted between abuse of power and abuse of position
as a distinct and important element of the of vulnerability. Often what follows is that abuse
international definition of human trafficking of that power necessarily involves abuse of
and an inherent feature of many trafficking the victim’s vulnerability’. 58 In the context of
cases. 52 The APOV, alongside deception, is a trafficking in persons for organ removal abuse
subtle means most commonly used in cases of power might occur whereby an offender takes
of trafficking in persons for organ removal advantage of an imbalance of power with an
where monetary payment is involved. In cases intent to compel an organ donor to donate, or
where APOV and deception appear to be the the power dynamic allows the offender to take
only means used, questions may arise about decisions concerning what is to be done to the
the level of deception required to establish the donor. In the medical phase of the trafficking
trafficking in persons case, and what constitutes process, this concept might be applicable
APOV. According to the Interpretative Notes on when a surgeon exploits the dependence of the
Article 3 of the UN TIP Protocol, as included trafficked person in order to proceed with the
in the Travaux Préparatoires, the term ‘abuse intervention.
of a position of vulnerability’ refers to “any
• The last means listed under the trafficking
situation in which the person involved has
definition is ‘ the giving or receiving of
no real and acceptable alternative but to
payments or benefits to achieve the consent of
submit to the abuse involved”. 53 The definition of
a person having control over another person ’.
abuse of vulnerability can focus “on the objective
This includes a situation where an organ donor
situation or on the situation as perceived by the
is forced to give consent to organ removal
victim”. 54 Consequently, abuse of a position of
by a third party, such as a family member, or
vulnerability refers to: “any situation in which
someone with custodial (legal) authority in
the person involved believes he or she has no
exchange for money or another benefit. 59 This
real and acceptable alternative but to submit.” 55
might also occur when a representative agrees
For more on APOV in the context of TIP for OR
to give authorization to the organ removal from
please see Module 6.
his or her child or ward.
• Deception denotes dishonesty with regard to the
organ donor-victims’ knowledge of what organ
removal is, and what the procedure of organ
removal involves. Deception causes donors-
victims to trust information that is not true either
by conveying falsehoods or by depriving them of
crucial information thereby taking advantage of

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OF TR AFFICKING IN PERSONS FOR ORGAN REMOVAL

listed in the definition of trafficking in persons

D. Consent
(e.g. coercion). Additionally, the criteria would also
strengthen and provide additional meaning to more
Article 3(b) of the UN TIP Protocol stipulates subtle means, like deception and APOV, used to
that the consent of the victim is irrelevant in recruit and exploit organ donors. UNODC guidance
establishing the offence when one or more of on the subject confirms that “the exploitation element
the means listed in the definition are used to of the trafficking definition, here organ removal, can
exploit a person. Putting it differently, the consent inform what is meant by ‘abuse’ of vulnerability, in
of the (adult) trafficked person to the intended the sense that it means only that the trafficker used
exploitation is irrelevant where deceptive, the victim’s vulnerability for the criminal purpose of
coercive or other illicit means have been used. exploiting him or her”. 63
It is also well established that a victim’s consent
cannot serve as a defense for the perpetrator in Victims may be recruited specifically because they
court. 60 are struggling financially, or through deception, in
that they are not fully informed as to the nature of
Consent, and questions around it, is often the the procedure, the recovery process and the impact
dividing line between the TIP for OR, organ of the organ removal on their health. Organ donors
trafficking, and legitimate organ donation. This is might also be deceived as to the circumstances of
mainly due to the unique nature of organ removal as the organ removal, such as misinformation about
a form of exploitation, and because organ removal the level of expertise of the medical team, the
for commercial purposes in considered to be a suitability of the facility where the intervention will be
criminal offence. performed, or the after care they might be receiving.
One study concluded that “donors who had a strong
The act of organ removal for the therapeutic purpose feeling of making an autonomous decision without
of transplantation is considered to be one of the feelings of coercion before as well as after (living
highest expressions of altruism, as long as it is liver donors), coped better with the post-operative
voluntary. The organ removal is unlawful if some course (…). This was probably related to the feeling
type of payment for the organ has been made, and/ that the individual is responsible for his or her
or exploitative if the donor was forced, coerced actions, has control of its own life, able to avoid
or taken advantage of in order to have an organ negative situations.” 64
removed. Because the issue of consent in transplant
laws and the legal framework of trafficking in Organ donors decision-making capacity to provide
persons interact, and to some degree overlap, it valid consent to organ removal may be compromised
might not always be clear which form of illicit organ due to their physical characteristics (e.g., disabilities)
removal has occurred. For this reason, a number and/or socio-economic situation or other stressors.
of legal experts from different States expressed Studies on the issue of consent obtained prior
the view that “organ trading with apparently valid to surgery indicate that low levels of education,
consent of the ‘donor’, even if illegal and even if language competency, and literacy impact an
it involved possible abuse of vulnerability would in individual’s comprehension of information during
their respective jurisdiction not usually be prosecuted the informed consent process. 65 Very often traffickers
as trafficking in persons.” 61 As such, it is crucial to who accompany the donor to a medical clinic restrict
understand how consent operates in cases of TIP for and control the donor. If the consent given in a
OR. That requires an understanding of the means medical facility was not informed, free, specific, and
and of how they are applied during the process of explicit, or if the donor had not been made aware
trafficking. of the possibility to revoke consent, such consent
cannot be considered valid. Even if the organ donor
Importantly, because legitimate organ removal is was adequately informed (i.e. no deception or
highly regulated, the criteria of consent to organ fraud), trafficking in persons may still be established
removal, in particular those that are set out in through other means including where the perpetrator
international legal instruments and guidelines on maintained control over the victim through the
transplantation, are relevant to the context of human abuse of that person’s position of vulnerability or by
trafficking for the purpose of organ removal. 62 using threats or force. Awareness about the donor’s
The process of obtaining consent to the surgical circumstances as well as his or her relationships with
intervention of organ removal is directly connected to the recipient and alleged perpetrators is required to
the trafficking stages, in a sense that it becomes part determine whether the donor was free to decide.
of the process of invalidating the donor’s consent
as defined under the UN TIP Protocol. On the basis The majority of cases of trafficking in persons for
of the criteria for valid consent to organ removal, it organ removal that have been reported involve
would be possible to determine: 1) when the consent desperately poor persons who feel compelled to
from a living donor is invalid, 2) which criteria that accept an offer to sell an organ in an attempt to
render consent inadequate overlap with the means elevate their socio-economic condition. 66 The UN

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OF TR AFFICKING IN PERSONS FOR ORGAN REMOVAL

TIP Protocol stipulates that the receipt of payments On the basis of the study, several committees of
or benefits does not exclude cases from being the Council of Europe pointed out that “despite
exploitative. This situation can be compared with the existence of two international binding legal
a person who is trafficked for forced labour or instruments [...], important loopholes that are not
domestic work and receives salary that is below the sufficiently addressed by these instruments continue
minimum wage (as stipulated by the domestic law), to exist in the international legal framework.” 70
and still is considered a victim of trafficking. In this Special reference was made to the inapplicability
situation it is not the amount of payment promised of the TIP framework to instances where the organ
and received that should be placed at the center of donor “has – adequately – consented to the removal
the assessment process but rather how the person of organs or – for other reasons – is not considered
came to give consent and to accept the financial to be a victim of trafficking in terms of the [….]
offer. conventions.” 71

The task to develop a specific criminal law

E. Exploitation instrument dedicated to combating organ trafficking,
and to address these concerns in a comprehensive
The definition of what constitutes an organ is way, was undertaken by the Council of Europe. 72
relatively harmonized among States. However, there Since 2015 organ trafficking is criminalized
might be some variations, which could require under the Council of Europe Convention against
verification of the exact definition of an organ Trafficking in Human Organs (Organ Trafficking
provided under domestic transplant law. Convention). This convention entered into force in
March 2018 and is open to member states of the
The UN TIP Protocol does not provide any additional Council of Europe and to non-member states upon
explanation as to what the term “removal of organs” invitation. In the Organ Trafficking Convention
means but it “envisaged to include kidney, liver, organ trafficking is defined as a whole range of
heart, lung, and pancreas”. 67 All are considered to offences relating to the illicit removal of an organ.
be solid organs. In practice, the most commonly The centerpiece of the organ trafficking crime is the
removed organs in context of TIP for OR are kidneys, offence of ‘illicit removal of human organs’, defined
and to a much lesser extent also liver segments or as organ removal:
lobes. • performed without the free, informed and
specific consent of the donor or, in the case of
The situation might be different when a person is the deceased donor, without the removal being
trafficked for organ removal for ritualistic purposes, authorized under its domestic law; or
which often implies that the victim might be • where, in exchange for the removal, the
killed before his or her body parts are removed. donor or a third party has been offered or
Nonetheless, the removal of vital organs (e.g. heart) has received a financial gain or comparable
will qualify the crime as aggravated trafficking in advantage (Article 4.1).
persons, because it causes the death of the victim.
Additional organ trafficking offences include:
• the implantation or other use of such an illicitly
3. ORGAN TRAFFICKING removed organ (Article 5);
• the preparation, preservation, storage,
Very often the terms TIP for OR and organ transportation, transfer, receipt, import, and
trafficking are used interchangeably, creating export of such an illicitly removed organ (Article
considerable confusion among criminal justice 8);
practitioners, legal experts, and service providers • the illicit recruitment or solicitation of a donor
regarding the nature of these crimes, and the scope or a recipient (Article 7(1));
of the trafficking in persons framework. In 2008, in • the offering and requesting of undue
a study conducted jointly by the Council of Europe advantages to or by healthcare professionals or
and the United Nations it was noted that trafficking officials with a view to performing or facilitating
in persons, as defined in the UN TIP Protocol, does such removal or implantation or other use
not include trafficking of the organ, tissue and cells, (Articles 7(2) and 7(3));
and does not cover offences where the organ is • attempting to commit, or aiding or abetting the
removed from deceased persons. 68 As such the joint commission of, any of these criminal acts (Article
study “identified a need to develop a dedicated 9).
international legal tool, which builds on an
agreed upon definition of trafficking in organs, The Convention also has two provisions encouraging
includes provisions for the criminalization of countries to consider establishing as criminal
this practice, along with provisions targeted offences activities that relate to organ removal
to its prevention, and to victim protection and (Article 4.4) or implantation (Article 6) performed
assistance”. 69 outside the domestic transplant systems or

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OF TR AFFICKING IN PERSONS FOR ORGAN REMOVAL

in breach of essential principles of domestic to what they are entitled to the framework of
transplant regulations. trafficking in persons, or even be prosecuted
depending on the domestic policy of treating organ
The Organ Trafficking Convention does not directly sellers, contrary to the principle of non-punishment
address the trade in organs, although it does for victims of trafficking.
address offering and receiving financial gain or
comparable advantage in exchange for the removal
of an organ (Article 4.1). A. Differences and overlaps between
the trafficking in persons and the organ
The Organ Trafficking Convention mirrors the
structure of human trafficking instruments in trafficking frameworks
that it contains chapters on substantive criminal The Convention introduces four stand-alone offences
law, criminal procedure (including international (Articles 4.1, 4.4, 6 and 7.1) and five offences
cooperation), protection of victims and witnesses, involving activities committed in connection with the
and prevention. relevant stand-alone offence (Articles 5, 7.2, 7.3,
8 and 9). Some of these offences can correspond
With regards to the rights of victims, the Organ with provisions on the illegal removal of an organ
Trafficking Convention recognizes that organ donors as defined by the UN Trafficking in Persons Protocol.
could be entitled to protection and assistance as Since both criminal law frameworks deal with illicit
a ‘victim’, but it does not define who might be organ removal, it is important to examine their
considered a ‘victim’. The determination of the differences and overlaps.
legal culpability and the de facto treatment of an
organ donor (as a suspect, a witness, or a victim) is Differences
left to the discretion of the states. 73 If domestic law
allows these persons to be recognized as victims, The UN TIP Protocol does not cover:
states are under an obligation to provide them with • commercial dealings with human organs
access to information, 74 assistance in recovery, 75 independent from coercive financial offers to a
and compensation from perpetrators. 76 While those living donor;
measures are satisfactory in that they maintain • use (which will normally be implantation) of an
an approach that is in line with the European organ that was illicitly removed;
instruments on victim protection, 77 they only offer • manipulations (e.g. preparation, transportation,
basic assistance as compared to the measures and implantation) of the organ itself after it was
prescribed by the Council of Europe Convention illicitly removed
against Trafficking in Human Beings. • trafficking in tissues and cells.

If, however, domestic law does not provide for the Potential overlaps
opportunity to consider organ donors who accepted There is a clear overlap between the trafficking in
a monetary offer in exchange for an organ as persons and organ trafficking frameworks in that
victims of organ trafficking these persons could both may be applicable when an organ is illicitly
find themselves liable under five provisions of the removed from a living organ donor. The overlap
Organ Trafficking Convention, namely: (1) the illegal exists because in order to establish the respective
removal of an organ (Article 4(1)(a) and (b)); (2) trafficking offences both frameworks rely on the
the solicitation and/or recruitment of a recipient absence of the donor ’s valid consent, or the offer
(Article 7(1)); (3) offering any undue advantage to of monetary benefits to a donor.
healthcare officials, public officials, and private
entities with a view to performing or facilitating illicit In order for consent to organ removal to be valid
organ removal or the implantation of an illicitly it must be given freely by a fully informed organ
removed organ (Article 7(2)); (4) aiding or abetting donor, and it must be specific. Informed consent
and attempt (Article 9); and (5) where applicable is a process that involves an assessment of the
under national law, advertising the availability of patient’s competence to make decisions, followed
an organ with a view to seeking financial gain or by the disclosure of all relevant information and
comparable advantage (Article 21(3)). a verification that the patient comprehended the
information. Consent should also be ‘specific’,
which means that it must be clearly given with
The danger of this open approach is that vulnerable regards to an organ that is precisely identified. The
organ donors who are implicated in organ selling, Organ Trafficking Convention incorporates those
and who might be not identified as a victim of requirements in Article 4 (1). Any form of undue
trafficking in persons or are not considered as such pressure, coercion, or misinformation will render
because it was not possible to establish trafficking consent to organ donation invalid. 78 Similarly, under
in persons for organ removal, might receive a lower the trafficking in persons framework consent to
standard of protection and assistance in comparison organ removal is nullified when it is obtained by way

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OF TR AFFICKING IN PERSONS FOR ORGAN REMOVAL

of coercion, fraud or deceit, but also by other subtle by offering financial gain, or where consent is
means, like the abuse of the donor’s position of invalidated by other means (cf. the means element in
vulnerability. 79 trafficking in person). It is important to take a human
rights approach in addressing illicit organ removal
By way of comparing the provisions of the Organ from living donors to ensure that they are not afraid
Trafficking Convention with those that have been to come forward and report the crime, but also to
introduced by the international legal instruments on ensure that paths to protection and assistance are
trafficking in persons, it becomes clear that a direct not more difficult to access or uncertain.
overlap will arise in three scenarios: 80
With regards to the second concern, an analysis
1. removal of an organ from a living donor without of the principle of ne bis in idem in cases of illicit
valid consent; organ removal that could be prosecuted under both
2. removal of an organ from a living donor who criminal law frameworks revealed that the following
is persuaded into donating in exchange for factors are important to consider:
financial gain or comparable advantage; and
1. whether the prosecution for human and
3. solicitation or recruitment of a living donor for
organ trafficking is initiated concurrently or
financial gain or comparable advantage.
successively;
2. whether, for successive prosecutions, the final
verdict was issued by a court in the same state
B. Consequences of the potential overlap and, if so, whether new facts have come to
Due to the potential overlap in the legal frameworks, light; and
it is entirely possible that the same factual 3. whether, for successive prosecutions, the earlier
circumstances can satisfy both the elements of verdict was issued by a court in another state
TIP for OR as well as those of organ trafficking. and, if so, whether an agreement for mutual
Consequently, there is a very real risk that 1) victims recognition of judicial decisions exists.
of TIP for OR could face criminal charges as organ
sellers or other administrative sanctions that would
Research revealed that if a person who has engaged
violate the non-punishment principle, 81 which could
in illicit organ removal is prosecuted successively
have seriously adverse consequences for their lives
for trafficking in persons for the purpose of organ
and crime control in general; 2) offenders might be
removal and for organ trafficking, the principle
prosecuted and punished twice.
of ne bis in idem may come into play. 83 This will
be the case when the accused was convicted or
As for the former one, criminal justice practitioners
acquitted in a criminal court decision that is final,
will need to be attuned to the differences in the
that is recognized in the country where the new
legislation and make a case-by-case determination
prosecution is initiated, and that involved factual
based on the facts and the evidence available. In
circumstances that are identical or substantially
order reduce the risk of criminalizing and otherwise
the same as compared to those being considered
punishing vulnerable organ donors it is advised
for the new trial. Consequently, a new prosecution
that where there are credible indications that a
may be allowed if the earlier verdict is not officially
person may be a victim of trafficking, including
recognized or if new facts have come to light. As
indicators of the vulnerability of an organ seller,
to the latter circumstance, a criminal court may
then the more protective legal framework needs to
reconsider the sentence pronounced in the earlier
be considered from the outset. Investigators need to
conviction when facts come to light that occurred
be vigilant in assessing the personal circumstances
before the earlier conviction and that had not been
of organ donors who receive some form of payment
taken into account. However, this might not always
to ensure that such payment was not coercive and
be compatible with the interpretation of the principle
did not occur through the abuse of a position of
of ne bis in idem given by the European Court
vulnerability, nor through psychological pressure. 82
of Human Rights and the Court of Justice of the
European Union.
With regards to the matter of crime control, the
Organ Trafficking Convention breaks down the
Where a second prosecution is possible because
three element definition of human trafficking and
of the legal qualification of the act of illicit organ
addresses the following illicit conduct as stand-
removal, or where new proceedings can be initiated
alone offences: (1) the recruitment and solicitation
for the same crime in another state under the same
(cf. the act element in trafficking in persons) of a
legal definition or an alternative one because of the
person with a view to illicit organ removal, to the
national scope of the principle of ne bis in idem,
extent that recruitment and solicitation were carried
this may raise questions regarding the purpose
out for financial gain; and (2) organ removal where
and fairness of punishment. Additionally, these
abuse is made of a person’s position of vulnerability
scenarios may result in other undesirable outcomes,

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OF TR AFFICKING IN PERSONS FOR ORGAN REMOVAL

including duplication of criminal proceedings, clear evidence that illicit means had been used
lack of equivalent protection for persons within the and when the donor “has adequately consented
EU legal system and outside, and undermining of to the removal of organs or for other reasons
legal certainty aimed at protecting individuals from is not considered to be a victim of trafficking
arbitrary treatment by the judiciary. 84 in terms of the [….] conventions.” No possible
misapplication of the two legal frameworks is
present.
C. Complementary approach85 • The organ trafficking framework individually
By criminalizing a wide range of transplant-related - when a living organ donor is not identified
abuses in criminal codes, 86 the Organ Trafficking and the case cannot be established as TIP,
Convention aims to supplement the prohibitions some actions that constitute TIP for OR could be
contained in international legal instruments on prosecuted under a number of provisions of the
transplantation as they have been transposed in Organ Trafficking Convention (e.g. recruitment
domestic transplant laws. The Convention may and solicitation), and some could be considered
carry an advantage in addressing some offences as abetting the commission of illicit organ
connected to TIP for OR or prosecuting offenders removal. 87 No risk of prosecution of potential
when it is technically not possible to establish TIP for victims of organ removal is posed, as such no
OR crime. possible incompatibility is present.

At the same time, it is specified that the Organ

Trafficking Convention aims to complement the
trafficking in persons framework and not to replace
that framework. To ensure this complementarity
the following scenarios for application of both
frameworks could be considered:

• Apply both TIP for OR and OR charges

simultaneously – if identified organ donor has
been exploited for an organ, TIP for OR should
be the main framework applied to prosecute
the alleged traffickers. If possible, under the
domestic legal system, secondary charges can be
brought under the organ trafficking framework
to cover a broad range of organ and transplant
related offences. In this way both criminal legal
frameworks could work in a complementary
way and expand the net of criminal provisions
under which traffickers, medical staff and
private persons could be held liable for
a broad range of organ-and-transplant
related crimes, while protecting the rights of
vulnerable persons.
• Apply OR framework with reference to TIP for
OR approach to consent if the crime involves
a living donor and that person’s pre-existing
vulnerability is evident but, because of problems
in establishing the facts of the case, no charges
were filed for TIP for OR, it would be appropriate
to take a human-rights approach. In doing so,
the organ trafficking framework could benefit
from the suggestion, incorporated in counter
trafficking instruments, that the means that have
been used to elicit the donor’s collaboration
always invalidate the possible consent given
by that person. In this scenario, both legal
frameworks are used in a complementary
way so as to effectively address prosecutorial
challenges while still maximizing the protection
of the donor.
• Apply OR framework alone - in the absence of

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OF TR AFFICKING IN PERSONS FOR ORGAN REMOVAL

Key differences between trafficking in persons and organ trafficking

Trafficking in Persons for Organ Removal as per the UN Organ Trafficking as per the Council of
Trafficking in Persons Protocol Europe Convention on Organ Trafficking

Aim of the instrument Primarily to address organized crime Primarily to address violations of
that exploits vulnerable persons. transplant law, including occurring across
borders.

Purpose of the crime The purpose of trafficking in persons is The purpose of organ trafficking is
the exploitation of an organ donor. benefiting financially from illicit organ
Exploitation can occur only once, removal and transplantation.
unless different organs are removed in Gaining unethical advantages in relation
subsequent procedures. to organ removal, allocation and other
transplant services.

Subject of the crime Exploited organ donor. Human organ that was removed illicitly.

Definition of the crime Illicit organ removal is a part of three- There is no singular definition.
part definition of trafficking in persons Organ trafficking encompasses several
(ACT, MEANS AND PURPOSE). organ-transplant related crimes.

All three elements must be proven Illicit organ removal is a standalone

to establish trafficking in persons. offence incorporated under the umbrella
Organ removal does not have to occur of organ trafficking.
to establish trafficking in persons – At least one out of two conditions must be
meaning that the purpose of organ present to establish illicit organ removal.
removal is enough for the crime
trafficking in persons. Organ solicitation and advertising
willingness to sell or buy are also
Recruitment/solicitation of organ donors standalone offences.
is part of the definition.

Consent and The consent of the victim of trafficking The validity of donor’s consent is relevant
victimization in persons for organ removal is to the crime in a sense that: 1) it allows
irrelevant because of the means, one to establish illicit organ removal
including the abuse of the donor’s as specified in Article 4.1; 2) donor
position of vulnerability or the coercive, consent to illicit organ removal given
deceptive, or threatening actions of the in the absence of any coercive means
trafficker. disqualifies the donor from the status of
victim of trafficking in persons.

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OF TR AFFICKING IN PERSONS FOR ORGAN REMOVAL

4. OTHER APPLICABLE CRIMINAL LAW a search to match the donor with the recipient, find
PROVISIONS a clinic where the removal could take place, identify
willing doctors or staff willing to collaborate in
The UN Transnational Organized Crime crime commission. In this light trafficking in persons
Convention provides a legal framework for Member is extremely well-organized and mobile, does not
States to address transnational organized crime. always resemble a clear hierarchical structure but
Crimes that are relevant to trafficking in persons for is adaptable; involving a network of travel agents,
organ removal include participation in an organized insurance companies, or charitable trusts, medical
criminal group, money laundering, corruption, companies, 93 organ brokers, lab technicians,
obstruction of justice, and serious crimes (crimes directors of transplant units, and qualified
that carry a maximum penalty of at least four years professional nursing staff. 94 It should be noted that
in prison). In the case that organ removal from although trafficking networks in their structure and
a trafficked person is disguised as an altruistic operation, may resemble an organized criminal
donation, some of the illicit acts might be connected group, they are rarely prosecuted as one. Often
to and considered as ‘organ laundering’ – whereby prosecution focuses on one or a few key traffickers,
“the illegal removal and purchase of organs either brokers or medical staff, for whom sufficient
take on the appearance of a legal transaction”. 88 evidence has been collected to charge them with
Organ laundering mainly encompasses financial trafficking in persons. When the accused is charged
offences and the abuse of domestic health services. with participation in an organized criminal group,
In addition, a number of offences related to the he or she may not necessarily receive an additional
facilitation of trafficking in persons may exist under punishment. It is paramount that crimes of trafficking
domestic law and may be prosecuted separately. All networks are prosecuted as organized crime to
of these offences are discussed briefly below. impede their capacity to recruit new members and
continue their operation unaffected or move their
illicit business elsewhere.
A. Participation in an organized criminal
group B. Corruption
If trafficking in persons for organ removal has
Evidence to date confirms that corruption is often
been commissioned by three or more traffickers
an element of TIP for OR cases – possibly spanning
systematically working together across borders or
across multiple stakeholders in the organized
within national borders, 89 in order to obtain, directly
criminal group from health administration, medical
or indirectly, a financial or other material benefit, 90
profession and transplant administration. Criminal
prosecutors can seek a higher penalty for their
justice practitioners are encouraged to consider
participation in an organized criminal group. States
corruption offences in their domestic legislation as
who have passed their own organized crime laws
part of an overall charging strategy.
might not rely on UNTOC for this purpose alone.
The UNODC Legislative Guide clarifies that the
concept of an organized criminal group, defined
by the UNTOC as a ‘structured group of three or C. Money laundering and financial crimes
more persons, existing for a period of time’, ‘is to Other criminal offences that could be prosecuted
be understood broadly, to exclude crimes committed as part of a comprehensive approach to addressing
by groups on an ad hoc basis, but to include all the full criminality of trafficking in persons for
instances of crime that involve any element of organ removal are financial crimes, such as money
criminal preparation’. 91 This includes groups with laundering, and insurance fraud (discussed in
a hierarchical or other elaborate structure but also section on organ laundering below). The profit
non-hierarchical groups where the roles of the margin for traffickers and medical professionals,
members of the group are not formally defined and/or medical facilities can be estimated to be
or specified. A structured group is not necessarily between thousands, if operated in lower-middle
a formal type of organization, with a structure, income countries; to millions of dollars, if traffickers
continuous membership and a definition of the roles operate for a prolonged period, involving multiple
and functions of its members. However, it must be illicit transplants in upper-middle to high income
more than “randomly formed for the immediate countries. A well-known transplant surgeon, who
commission of an offence”. 92 performed illicit transplants for over 10 years in a
number of countries worldwide, is believed to have
Contrary to other forms of trafficking, trafficking made a profit of US$20million to US$30million. 95
for organ removal requires a significant amount of Organ recipients tend to pay for illicit organ
preparation and organization to find a donor and removal and transplantation between US$50,000
move that person to a clinic (private, public), prepare to US$150,000, depending on the state and the
the documentation required for illicit organ removal clinic. 96 Whereas the organ donor-victims might be
and transplantation (i.e. identity documents), conduct

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paid between US$500 to US$15,000, 97 usually paid to be integrated into the health services for two
in cash, if they are paid at all. reasons. First, organ recipients need a supply of
immunosuppressive drugs (possibly for a lifetime)
Following the money flow may be complex as several to stop the body from rejecting the transplanted
people and different methods of payments may be organ, and a supply of medications to reduce
involved. The situation is especially challenging the side-effects of the immunosuppressive drugs.
when the money comes from a legitimate private Second, organ recipients often seek reimbursement
or public institution, like insurance companies, or of the transplant costs from their health insurance
when organ brokerage is disguised as a private provider. Recipients are aware that they will require
company. Detecting illicit financial transactions could medical follow-up after the illicit transplant,
be difficult for both law enforcement agents and requiring a ‘clean’ medical history proving that they
anti-money laundering (AML) professionals but could underwent a legitimate organ transplant. Insurance
assist in establishing trafficking in persons for organ companies, often subsidized by the governments,
removal. Financial investigations, (e.g. identifying may be funding these illicit transplants, which further
payments, and the money flow), combined with impedes enforcement of trafficking law. While it
an analysis of financial transactions associated might not be possible to establish criminal liability
with the illicit activities can play a significant role of those insurance companies under the framework
in substantiating the allegation of trafficking in of trafficking in persons if they are not aware of the
persons. 98 exploitation of donors, it is important to investigate,
and if possible, prove the insurance fraud so as to
The profit from trafficking in persons and organizing stop and outlaw the practice. Moreover, prosecution
illicit organ removal can be used 1) to sustain the of patients who engage in this practice might deter
illegal operation, or expand it, and 2) for personal them from engaging in illicit organ trade. One of the
enjoyment of illegal profit in a legal way. Therefore, difficulties in investigating and prosecuting insurance
the money needs to be laundered into the legitimate fraud, or insurance companies themselves if they
financial system. Money laundering is a process that are aware of illicit transplantation, concerns the
aims to conceal the identity, source, or destination jurisdiction of states in prosecuting patients when the
of, or possessing or using, illegally obtained crime was committed abroad.
money, criminalized under Article 6(1)(a) and (b) of
the Organized Crime Convention. As such States To overcome the extra-jurisdictional challenges States
are required to criminalize the laundering of the could rely on the Organized Crime Convention
proceeds of crime. The Organized Crime Convention as part of the broader trafficking in persons
additionally stipulates that money laundering investigation and established legal tools to enhance
offences should apply to a broad range of offences a cross- border investigation and prosecution. For
that may generate proceeds of crime, referred to as more information on financial investigation go to
‘predicate offences’. 99 To enable law enforcement Module 5.
authorities recover the proceeds of traffickers,
brokers and medical professionals, States can utilize E. Other crimes
their anti-money laundering and asset confiscation
laws. Importantly, trafficking in persons does not A number of offences related to the facilitation of
need to occur within a State’s territory for that State trafficking in persons can be prosecuted separately.
to prosecute a person for money laundering. Article Those include but are not limited to assault, causing
12 of the Organized Crime Convention also calls bodily harm, fraud and falsification of identity or
on States to criminalize the conversion or transfer travel documentation (passports), 101 using public
of property, the concealment or disguise of the funds and public medical facilities to perform
true nature, and the acquisition, possession or use medical tests (e.g. compatibility test), embezzlement,
of property, when such property is the proceeds and abuse of a position of authority (in case of
of crime, which can be also utilized to deprive the medical professionals or public officials).
traffickers from benefiting from the crime. In Module
5 more information is provided.

D. Organ laundering – insurance fraud

and abuse of health care system
Organ laundering refers to the process ‘whereby
illicitly purchased organs are transformed into
legitimate organs by the process of integration into
mainstream financial institutions (reimbursement
by insurers) and health services (follow-up
treatment) for recipients’. 100 All illegally transplanted
organs, including from trafficked persons, need

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ENDNOTES

1) World Health Organization (WHO), Preventing the Purchase and Sale of Human Organs, WHA42.5, 15 May 1989; WHO Guiding
Principles on Human Organ Transplantation, WHA44.25, 13 May 1991; WHO Guiding Principles on Human Cell, Tissue, and Organ
Transplantation, WHA63.22, 21 May 2010.
2) The 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, Council of Europe, Treaty No. 164, 1 December 1999 (Convention on Human
Rights and Biomedicine).
3) Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of Organs and Tissues of Human
Origin, Council of Europe, Treaty No. 186, 1 March 2006 (Additional Protocol on Transplantation). A legally binding instrument at the
level of the European Union is the Directive 2010/45 of the European Parliament and of the Council on Standards of Quality and Safety of
Human Organs Intended for Transplantation, OJ 2010 L 207/14.
4) World Medical Association, Statement on Live Organ Trade, Thirty-seventh World Medical Assembly, October 1985; World Medical
Association, Declaration on Human Organ Transplantation, Thirty-ninth World Medical Assembly, October 1987; World Medical
Association, WMA Statement on Organ and Tissue Donation, Sixty-third WMA General Assembly, October 2012; Sixty-eight WMA General
Assembly, October 2017.
5) The position of the Council of Europe on live organ transplantation has evolved over the years, as evidenced through different legal
instruments. The initially conservative approach towards living organ transplantation reflected in the Convention on Human Rights and
Biomedicine has evolved to the more recent adoption of Resolution CM/Res(2013)56 on the development and optimization of live
kidney donation programmes. Building on the concept that living donation is a necessary adjuvant in the pursuit of self-sufficiency in
transplantation, this Resolution invokes the need to pre-emptively present the option of live kidney transplantation, to overcome legal and
technical obstacles, and to ensure comprehensive protection of living organ donors. The specificities of liver living donation and the basis
for unrelated living donation programmes have also been the subject of specific recommendations to member states embarking on such
strategies. Preamble of the WHO Guiding Principles and Guiding Principle 3. Similarly, the Convention on Human Rights and Biomedicine,
art. 19(1) established the following regulations with regards to who can be a donor: “Removal of organs or tissue from a living person
for transplantation purposes may be carried out solely for the therapeutic benefit of the recipient and where there is no suitable organ or
tissue available from a deceased person and no other alternative therapeutic method of comparable effectiveness”. The Additional Protocol
reiterates this regulation stating in art 9: Removal of organs or tissue from a living person may be carried out solely for the therapeutic
benefit of the recipient and where there is no suitable organ or tissue available from a deceased person and no other alternative therapeutic
method of comparable effectiveness. With regards potential organ donors, art. 10 of the Additional Protocol on Transplantation: “Organ
removal from a living donor may be carried out for the benefit of a recipient with whom the donor has a close personal relationship as
defined by law, or, in the absence of such relationship, only under the conditions defined by law and with the approval of an appropriate
independent body”. The Committee of Ministers of the Council of Europe (CMCE) allowed kidney transplantation from living donors who
are not genetically related to the recipient. This is permitted providing that the listed conditions are respected for the given transplant,
regulations are put in place in view of prohibiting commercial transitions in organs, and clearly defined rules have been established for
non-residents - Council of Europe, Resolution CM/Res (2008)6 on transplantation of kidneys from living donors who are not genetically
related to the recipient. See also Resolution CM/Res(2013)56 on the development and optimization of live kidney donation programmes.
6) Art 19(2) the Council of Europe’s Convention on Human Rights and Biomedicine; art 13 of the Additional Protocol concerning
Transplantation of Organs and Tissues of Human Origin.
7) WHO, WHO Guiding Principles on Human Cell, Tissue, and Organ Transplantation, Principle 3.
8) Tom L. Beauchamp, James Childress, Principles of bioethics, 5th ed. (Oxford University Press, 2001).
9) Francis L. Delmonico “Vancouver forum on the live lung, liver, pancreas, and intestine donor”, Transplantation vol. 82, No. 9 (2006);
Timothy L. Pruett and others., “The ethics statement of the Vancouver Forum on the live lung, liver, pancreas, and intestine donor”,
Transplantation vol.81, No.10 (May 2006), pp. 1386-1387; Mark L. Barr and others, “A report of the Vancouver Forum on the care of the
live organ donor: lung, liver, pancreas, and intestine data and medical guidelines”, Transplantation vol. 81, No.10 (2006, pp. 1373-1385.
10) Additional Protocol art. 11; Francis, L. Delmonico “A report of the Amsterdam forum on the care of the live kidney donor: Data and
medical guidelines”, Transplantation vol. 79 (2005), p. S53–S66; Pruett, ”The ethics statement” (footnote 9)
11) WHO Commentary on Guiding Principle 3.
12) Convention on Human Rights and Biomedicine, art. 20; Additional Protocol, art.14;
13) Article 20(2) of the Convention on Human Rights and Biomedicine and art.14(2) of the Additional Protocol state: Exceptionally and
under the protective conditions prescribed by law, the removal of regenerative tissue from a person who does not have the capacity to
consent may be authorized provided the following conditions are met: i) there is no compatible donor available who has the capacity to
consent; ii) the recipient is a brother or sister of the donor; iii) the donation must have the potential to be life-saving for the recipient; iv) the
authorization provided for under paragraphs 2 and 3 of Article 6 has been given specifically and in writing, in accordance with the law and
with the approval of the competent body; v) the potential donor concerned does not object.
14) Explanatory Report to the Additional Protocol to the Convention on Human Rights and Biomedicine concerning Transplantation of
Organs and Tissues of Human Origin, p. 23
15) WHO, WHO Guiding Principles on Human Cell, Tissue, and Organ Transplantation, Principle 4 applies to “kidney transplants between
identical twins (where avoiding immunosuppression represents a benefit to the recipient adequate to justify the exception, in the absence

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of a genetic disorder that could adversely affect the donor in the future)”; Convention on Human Rights and Biomedicine, art. 6; Note that
art.14(1) of the Additional Protocol explicitly stipulated that “only in very exceptional circumstances may derogations be made [….] and only
for the removal of regenerative tissues. Within the meaning of this article, regenerative tissue is that capable of reconstituting its tissue mass
and function after partial removal. These exceptions are justified by the fact that regenerative tissue, in particular bone marrow, can only be
transplanted between genetically compatible persons, often brothers and sisters.”
16) Frederike Ambagtsheer, Damián Zaitch and Willem Weimar, “The Battle for Human Organs: Organ Trafficking and Transplant Tourism
in a Global Context”, Global Crime vol. 14, No 1. (2013), p. 1.
17) WHO, WHO Guiding Principles on Human Cell, Tissue, and Organ Transplantation, Principle 5.
18) Article 1 on human dignity and specifically article 3 on the right to the integrity of the person; European Union, Charter of Fundamental
Rights of the European Union, 2012/C 326/02, 1 December 2009.
19) Insert annex or box with key stakeholders and description of them.
20) The Transplantation Society and International Society of Nephrology, “The Declaration of Istanbul on Organ Trafficking and Transplant
Tourism” Transplantation vol. 86, No. 8 (2008), para.1228 (The Declaration of Istanbul)
21) The Declaration of Istanbul, Preamble, citing the World Health Assembly Resolution 57.18. on Human organ and tissue transplantation.
22) The revised draft was prepared by an ad hoc working group established by the Declaration of Istanbul Custodian Group.
23) CETS no. 216, 25 March 2015
24) The Declaration of Istanbul on organ trafficking and transplant tourism (2018 edition), Transplantation 103 2019, p. 218–219.
25) Asian Task Force on Organ Trafficking, “Recommendations on the Prohibition, Prevention and Elimination of Organ Trafficking in Asia
(Taipei Recommendations)”, 2008.
26) See Francis L. Delmonico and others, “Living and Deceased Organ Donation Should Be Financially Neutral Acts”, American Journal
of Transplantation vol.15 No. 5 (March 2015), pp. 1187-1191; Marta López-Fraga and others, ‘Human Trafficking for the Purpose of
Organ Removal’, in R. Piotrowicz, C. Rijken & B. H. Uhl eds., Routledge Handbook of Human Trafficking (New York: Routledge, 2017) pp.
120–134.
27) Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for
the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, L 102/4, art. 12. See also
Directive 2010/53/EU of the European Parliament and of the Council on standards of quality and safety of human organs intended for
transplantation, OJ L 207/ 2010, art. 13.
28) Directive 2010/53/EU of the European Parliament and of the Council on standards of quality and safety of human organs intended for
transplantation, OJ L 207/14, art. 13.
29) Council of Europe, Guide for the implementation of the principle of prohibition of financial gain with respect to the human body and its
parts from living or deceased donors, Strasbourg, March 2018, available at [Link]
30) The Istanbul Declaration, 2018.
31) United Nations, Treaty Series, vol. 2237, No. 39574, 15 November 2000 (UN TIP Protocol).
32) See for the list of ratifications, available at: [Link]
a&chapter=18&clang=_en (accessed 9 December 2020).
33) United States, Title 22 of the US Code §7101. However individual states, like Massachusetts, include organ trafficking within their state
laws on human trafficking.
34) Hungary, Criminal Code, art.192.
35) Belarus, Criminal Code, art. 181. In India, reference is made to abuse of power, which does not necessarily cover the same mode of
exploitation. See India, Criminal Code, section 370(1), 5.
36) Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols
thereto (United Nations publication, 2004), p. 268–269, para. 33 (Legislative Guides for the Implementation of the United Nations
Convention) Please note that the latest version is from 2017 - [Link]/documents/treaties/Legislative_Guide_2017/Legislative_
Guide_E.pdf
37) UN TIP Protocol, art, 3(c).
38) United Nations, Treaty Series Vol. 2171 (2000). Article 3.1(a)(i)(b) of that Protocol requires States parties to prohibit, in the context of
the sale of children as defined in Article 2, the offering, delivering or accepting, by whatever means, a child for the purpose of transfer of
organs of the child for profit.
39) General Assembly, United Nations Convention against Transnational Organized Crime, A/RES/55/25 (Organized Crime Convention),
40) United Nations Office on Drugs and Crime, Assessment Toolkit: Trafficking in Persons for Organ Removal (Vienna, 2015) (UNODC
Assessment Toolkit), p. 32
41) United Nations Office on Drugs and Crime, Issue Paper on Abuse of a Position of Vulnerability and Other “Means” within the Definition
of Trafficking in Persons (New York, 2013) (UNODC Issue paper APOV), p. 16

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42) Ibid, p. 16
43) Council of Europe/United Nations, Trafficking in Organs, Tissues and Cells and Trafficking in Human Beings for the Purpose of the
Removal of Organs (Council of Europe/United Nations: Strasbourg 2009) (Joint Study), p. 78.
44) Ibid. p. 78.
45) Ibid p. 78
46) UNODC Issue paper Abuse of a Position of Vulnerability.
47) ibid p. 78.
48) UNODC Issue Paper APOV, p. 17.
49) United Nations Office on Drugs and Crime, Model Legislative Provisions on Trafficking in Persons, 2020. [Link]
documents/human-trafficking/2020/TiP_ModelLegislativeProvisions_Final.pdf, pp.19-20.
50) UN Special Rapporteur, Report on the issue of trafficking in persons for the removal of organs, A/68/256, 2013, p. 7.
51) Paul M. Hughes, “Constraint, Consent, and Well-Being in Human Kidney Sales”, Journal of Medicine and Philosophy vol. 34, No. 6
(2009), p. 606.
52) UNODC Issue Paper APOV, p. 3.
53) Travaux Préparatoires for the Organized Crime Convention and Protocols at 343, note 20.
54) UNODC Guidance Note on abuse of a position of vulnerability as a means of trafficking in persons in Article 3 of the Protocol to
Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime (2012)
55) UNODC Model Law against Trafficking in Persons, p.19.
56) Joint Study, p. 78-79.
57) Travaux Préparatoires for the Organized Crime Convention and Protocols, at 343, note 20.
58) UNODC Issue paper APOV, p. 74
59) UNODC Model Law against Trafficking in Persons (2009), p. 9-10.
60) UNODC Legislative Guide, para. 3.
61) United Nations Office on Drugs and Crime, Issue Paper: The Role of ‘Consent’ in the Trafficking Protocol (Vienna, 2014) (UNODC Issue
Paper Consent), p. 87
62) Besides the international transplant frameworks and the Organ Trafficking Convention on Trafficking in Human Organs, only the
Arab Charter on Human Rights addresses the issue of consent in relation to the use of organs. Article 9 states that no medical or scientific
experimentation or the use of organs can be carried out without free consent and full awareness of the consequences.
63) UNODC Issue Paper APOV, p. 76
64) Papachristou, “A Model of Risk” (footnote 66), p. 1684
65) Anne Sherlock, Sonya Brownie, “Patients’ recollection and understanding of informed consent: a literature review”, ANZ Journal of
Surgery vol, 84, No 4 (2014), p. 207 et seq.
66) Debra Budiani-Saberi, Sean Columb, “A Human Rights Approach to Human Trafficking for Organ Removal”, Medicine, Health Care
and Philosophy vol. 16, No. 4 (2013), p. 897 et seq.; Frederike Ambagtsheer, Damian Zaitch, Willem Weimar, “The Battle for Human
Organs: Organ Trafficking and Transplant Tourism in a Global Context”, Global Crime vol.14 No.1 (2013), p. 1 et seq.
67) Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Working Group on Trafficking in
Persons, Fourth Session, Trafficking in persons for the purpose of removal of organs, UN Doc. CTOC/COP/WG.4/2011/2 (29 July 2011) 3
[9].
68) Joint Study, p. 55.
69) Joint Study, p. 55.
70) Additional Opinion of the Steering Committee on Bioethics (CDBI), the European Committee on Crime Problems (CDPC), the European
Committee on Transplantation of Organs (CD-P-TO) identifying the main elements that could form part of a binding legal instrument
against the trafficking in organs, tissues and cells (Council Doc. CDPC/CDBI/CD-P-TO, 2011), para. 5.
71) Additional Opinion, para. 8; See also Explanatory Report to the Council of Europe Convention against Trafficking in Human Organs, p.
2.
72) It must be noted that the Arab Convention to Combat Information Technology Crimes of 2010 criminalizes trafficking in human beings
as well as human organs, as crimes committed by the use of technology (art 16).
73) Explanatory Report to the Organ Trafficking Convention, para. 111.
74) Organ Trafficking Convention, art. 18(a).

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75) Organ Trafficking Convention, art. 18(b).

76) Organ Trafficking Convention, art. 18(c).
77) E.g. Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), ETS
No. 005, 1950; European Convention on the Compensation of Victims of Violent Crimes, ETS No. 116, 1983; Council of Europe,
Recommendation (2005)9 of the Committee of Ministers to Member States on the Protection of Witnesses and Collaborators of Justice;
Council of Europe, Recommendation No. R (97)13 of the Committee of Ministers to Member States concerning Intimidation of Witnesses
and the Rights of the Defence; Directive 2012/29 of the European Parliament and of the Council Establishing Minimum Standards on the
Rights, Support and Protection of Victims of Crime, OJ 2012 L 315/57.
78) Ibid.; C. Huberts, “Un organe à quel prix? Genèse et analyse de la Convention du Conseil de l’Europe contre le trafic d’organes
humains”, Revue de droit pénal et de criminologie, vol. 96, No. 6 (2016), p. 605 et seq;
79) Frederike Ambagtsheer, Organ Trade (Erasmus University Rotterdam, 2017); Marta López-Fraga and others, ‘Human Trafficking for the
Purpose of Organ Removal’, in R. Piotrowicz, C. Rijken & B. H. Uhl eds., Routledge Handbook of Human Trafficking (New York: Routledge,
2017) pp. 120–134.
80) Ibid.
81) The Inter-Agency Coordination Group against Trafficking in Persons, Non -Punishment of Victims of Trafficking, Issue Brief 8, April 2020
(ICAT Brief); UN Special Rapporteur Report (footnote 50).
82) Sylwia Gawronska, “Organ Trafficking and Human Trafficking for the Purpose of Organ Removal, Two International Legal Frameworks
against Illicit Organ Removal”, New Journal of European criminal law, vol.10, No.3 (2019), pp. 268-286.
83) Sylwia Gawronska, Laurens Claes and Kristof Van Assche, “Double Prosecution of Illicit Organ Removal as Organ Trafficking and
Human Trafficking, with the Example of Belgium”, European Journal on Criminal Policy and Research (2020).
84) Ibid.
85) Sylwia Gawronska, “Organ Trafficking and Human Trafficking for the Purpose of Organ Removal, Two International Legal Frameworks
against Illicit Organ Removal”, New Journal of European criminal law, vol. 10, no.3 (2019), p. 268-286.
86) Council of Europe (Parliamentary Assembly, Social and Family Affairs Committee), Report on Trafficking in Organs in Europe by Mrs.
Ruth–Gaby Vermont-Mangold, COE Doc 9822, 2003 (Vermont-Mangold report), para. 38.
87) Sylwia Gawronska, “A Critical Look at the Council of Europe Convention against Trafficking in Human Organs and What It Means for
the Global Fight against Organ- and Transplant-Related Crimes”, European Criminal Law Review, vol. 3 (2018).
88) Ana Manzano and others, “The Invisible Issue of Organ Laundering”, Transplantation vol. 98, No. 6 (2014), p. 601.
89) Art. 34 (2) of the Organized Crime Convention states that the offences established in accordance with the Convention shall be
established in the domestic law of each State Party independently of the transnational nature.
90) Article 2(a) of Organized Crime Convention contains a definition of ‘organized criminal group’ as a (I) group of three or more persons
that was not randomly formed, (II) existing for a period of time and (III) acting in concert with the aim of committing at least one crime
punishable by at least four years incarceration (IV) in order to obtain, directly or indirectly, a financial or other material benefit.
91) Legislative Guides for the Implementation of the United Nations Convention. (see comment footnote 40)
92) UNTOC, art 2(c).
93) Yosuke Shimazono, “The state of the international organ trade: a provisional picture based on integration of available information”
Bulletin of the World Health Organization vol. 85 (2007), p. 955.
94) Vermont-Mangold report (footnote 94); The Vienna Forum to fight Human Trafficking, ‘Background Paper 011 Workshop: Human
Trafficking for the Removal of Organs and Body Parts, February 2008, Vienna.
95) Steve Farrer, “Why Illegal Trafficking in Organs is growing fast but few are talking about it” Financial Crime News, 16 June 2020.
96) Jeremey Haken Transnational Crime in the Developing World (Center for International Policy, 2011).
97) Marta López-Fraga and others, ‘Human Trafficking for the Purpose of Organ Removal’, in R. Piotrowicz, C. Rijken & B. H. Uhl eds.,
Routledge Handbook of Human Trafficking (New York: Routledge, 2017),p. 120; Assya Pascalev and others, ‘Trafficking in Human Beings
for the Purpose of Organ Removal: A Comprehensive Literature Review’, in F. Ambagtsheer and W. Weimar, eds., Trafficking in Human
Beings for the Purpose of Organ Removal: Results and Recommendations (Lengerich: Pabst, 2016), pp. 49–51.
98) Please see the OSCE’s ‘Compendium of Resources and Step-by-step Guide to Financial Investigations Into Trafficking in Human Beings”
available at [Link]
99) Trafficking in persons, as a form of organized crime, is called predicate offences in anti-money laundering laws and should be included
as a predicate offence in a State’s anti-money laundering law.
100) Manzano, “The Invisible Issue of Organ Laundering” (footnote 96), pp. 600-603.
101) OSCE Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings, “Trafficking in Human Beings
for the Purpose of Organ Removal in the OSCE Region”, Occasional Paper Series no. 6 (July 2013) (OSCE Paper), pp. 35-36.

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Contacts
Human Trafficking and Migrant Smuggling Section
Vienna International Centre, PO Box 500, 1400 Vienna, Austria

Website: [Link]
Email: [Link]@[Link]
Twitter: @glo_act | @htmss_unodc