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THERE is much that is legally prohibited and morally objectionable
in the lucrative international kidney trade involving donors who
did not freely or autonomously part with them.
First, it constitutes a criminal violation of
Philippine laws and of international conventions or protocols to
which the Philippines is signatory.
Secondly, it is so anathematic that not only
those who profit from or knowingly participated in the
crime—doctors, patients, their friends or benefactors, even
government—are criminally liable. Even those who unwittingly
participated may be held criminally liable.
Thirdly, the crime may be prosecuted in various
countries where the elements of the continuing crime were committed.
As to its morality, the practice violates the
freedom, autonomy and dignity of persons. Moreover, in mistreating
persons as commodities, it alienates and dehumanizes them. Finally,
government toleration or promotion of it, under the guise of medical
tourism, sells the soul of a nation.
The international trade
According to the Philippine Society of
Nephrology, the Philippines is one of the world’s “hot spots”
for organ harvesting, with recipients in the West and the Middle
East paying up to $30,000 for new kidneys. The usual cost is about
$10,000. Most of the money is pocketed by agents, including doctors,
who find donors and convince them to donate.
Just under a thousand kidney transplants are
being performed annually in the Philippines, with 90 percent of the
kidneys provided by living donors. Of that, 68 percent come from
living non-related donors (LNRD).
Recently, many foreigners turned to the
Philippines for “donations” ever since some countries, like
India, Pakistan and China passed laws controlling the selling of
organs. The practice has become so rampant that one journalist
called the Philippines the “kidney transplant capital in the
world.”
The LNRDs come mainly from the poor or marginalized
sectors of society, and have been reported to receive P112,000.00,
or about $2,700.00, for their donations.
The Protocol to Prevent, Suppress and Punish
Trafficking in Persons, especially Women and Children, which
supplements the United Nations Convention against Transnational
Organized Crime, criminalizes the trafficking of organs.
According to Article 3 of the Protocol,
“trafficking in persons” involves “the recruitment,
transportation, transfer, harboring or receipt of persons,” which
includes “the removal of (their) organs.”
Republic Act (R.A.) 9208, the Anti-Trafficking
in Persons Act of 2003, put into effect the Philippines’
ratification of the Protocol. Section 3 of the statute even expanded
the definition of “trafficking in persons” to include not just
the removal but also the sale of organs.
Curiously, whereas acts tantamount to
prostitution, pornography, sexual exploitation, forced labor,
slavery, involuntary servitude or debt bondage are specifically
penalized by the statute, the trafficking in the removal or sale of
organs is not mentioned in the rest of the statute. Neither has it
been specifically penalized.
This oversight has led the Department of Health
(DOH) to believe that there exist no laws prohibiting the sale and
removal of kidneys. Hence, the recent temporary suspension of kidney
transplants to foreigners issued by the DOH, along with its
Administrative Order No. 124 regulating the donation and transplant
of human organs, is in no way guided by the Protocol or R.A. 9208.
They have also been greeted with much suspicion.
Instead, the Order expands the coverage of R.A.
7170, the Organ Donation Act of 1991, which deals with non-living
donors, so as to regulate donations by LNRDs.
The Senate has pursued a remedy along the same
lines. This is evidenced by a bill recently proposed seeking to
regulate organ donation. It locates the evil in the harmful
“long-term health, psychological and economic implications” to
the donor and the “unfair allocation of organ and tissue
donations.”
Such a bill is misdirected. It unwittingly goes
contrary to the letter and spirit of RA 9280, of the Protocol and of
the UN Convention, which prohibit, not merely regulate, certain
types of organ donation. The suspicion that the ban or the
administrative order will be used by government to promote medical
tourism is therefore warranted.
RA 9280—taken in the light of the
Protocol—unwittingly, but not specifically, criminalizes and
prohibits the removal and sale of kidneys “by means of the threat
or use of force or other forms of coercion, of abduction, of fraud,
of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits
to achieve the consent of a person having control over another
person,”
for the purpose of exploitation.
Exploiting the poor
In the Philippines, the poor and the
marginalized, given their financial situation, are vulnerable to
receiving needed monetary benefits so as to construe their consent
as a donor to be not truly voluntary or autonomous. The Protocol
realized this and thus protected their rights. It did not regulate
kidney transactions. This is ultimately because their protection can
only be achieved, not by balancing the pecuniary interests of the
state in the form of medical tourism as against the health concerns
of the poor, but by means of outright criminal prohibition of the
trade.
(To be continued)
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eqfernando@hotmail.com
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