By: Angel Gardner
Human trafficking is most often associated with forced labor or sex trafficking. However, the United Nations identifies organ removal through coercion or force as a form of human trafficking. Under the United Nations Convention Against Transnational Crime, a person commits trafficking by “the recruitment, transportation, transfer, harboring, or receipt of persons, by means of the threat or use of force or other forms of coercion. Exploitation shall include. . . the removal of organs.” The illegal organ trade exists due to the severe shortage of legally sourced organs. In the United States alone, roughly 107,000 people are waiting for a lifesaving organ transplant. Annually, illegal organ transplantations account for roughly 5%-10% of all global transplants. The illegal trade of human organs generates around 1.5 billion dollars each year from roughly 12,000 illegal transplants.
The National Organ Transplant Act of 1984 (“NOTA”) bans the sale of organs in the United States. The law states that “it shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.” A person who violates the law could be subject to a $50,000 fine or up to five years in prison. In the near forty years since the statute was enacted, only one person has been prosecuted. In 2011, Levy Izhak Rosenbaum pleaded guilty to three counts of acquiring, receiving, and otherwise transferring human organs for valuable consideration for use in human transplantation. A cooperating criminal defendant and an undercover FBI agent uncovered Rosenbaum’s kidney business. During his guilty plea, Rosenbaum admitted that he located individuals in Israel who would willingly donate their kidneys for money. The lack of prosecution for human trafficking is attributed to the nature of the crime, a lack of awareness by law enforcement agencies, and the deficiency of information sharing channels between medical and police sectors.
Even though the United States has an extreme shortage of kidneys and individuals might turn to illegal means to obtain an organ, a potential solution would be to allow charitable contributions, pay medical costs, or provide restitution for income lost due to recovery. By providing these solutions it would help alleviate the number of people waiting for a transplant and disincentivize the number of people turning to illegal human trafficking. The United States allows two types of living donations, either a directed donation or a non-directed donation. When a person decides to donate, the transplant candidate’s insurance company covers the living donor’s medical expenses. The insurance companies are unlikely to cover long-term medical care if the donation causes the donor problems or follow-up care for the rest of the donor’s life.
In contrast, Iran is the only country that currently allows and incentivizes live kidney donations. Iran’s kidney program effectively eliminated the country’s kidney transplant waiting list since 1999, whereas tens of thousands citizens in the United States die each year while waiting for a transplant. The government pays for the surgeries and the donor gets health coverage for at least a year and a reduced rate on health insurance for years after.
If the United States implemented a similar system to Iran, it would decrease the number of people being victimized through the black market because the government could regulate the process of live kidney donations. However, international law forbids compensation for organ donations because guiding principles suggest that “payment for organs should be banned because it is ‘likely to take unfair advantage of the poorest and most vulnerable groups, undermine altruistic donations, and leads to profiteering and human trafficking.’” Critics of compensated donations believe that removing the altruistic nature of kidney donation would exploit the poor and increase the potential for coercion. But the black market already incentivizes brokers to deceive patients and organ providers leaving the patients or organ donors with no legal recourse. Further, the black market already exploits vendors from developing countries because they are seeking to alleviate debt or rise out of poverty. Another concern of allowing incentivized kidney donations is that it would detract from the altruistic nature of organ donations. In order to mitigate this concern, the government could eliminate the direct payment from the recipient to the potential donor and create a fully compensated government system or create an organ bank run by state health authorities. A core issue about allowing for compensated kidneys is that countries do not want to put a price tag on an act as priceless as donating an organ.
Instead, the United States could introduce a method of compensation that would seek to provide a form of restitution to the donor. One way of doing this could be by covering medical costs and payments similar to New York’s surrogacy laws which would decrease the number of recipients seeking black market organs. Completely compensated donations currently are problematic because countries fear it would detract from the altruistic nature of donations. But the United States could implement a system that allows for charitable contributions to increase the number of available donations while remaining an altruistic donation. Currently, many wealthy Americans who have the means to buy a kidney use the black market and are often unknowingly exploiting the poor in other countries. If the United States implemented a method of donation that allowed for charitable contributions, it could increase the number of available people willing to donate. This would decrease the number of Americans waiting for a donation. Currently, we do not have a system that can adequately address prosecuting human trafficking, but by allowing some forms of restitution, we can hopefully curb the number of people seeking kidneys through the black market.
 The Crime, U.N. Office on Drugs & Crime (last visited on Jan. 15, 2022), https://www.unodc.org/unodc/en/human-trafficking/crime.html.
 G.A. Res. 55/25, Art. 3(a), United National Convention Against Transnational Organized Crime & the Protocols Thereto (Nov. 15, 2000).
 See Channing Mavrellis, Transnational Crime & the Developing World, Glob. Fin. Integrity 1, 29 (Mar. 2017), https://secureservercdn.net/22.214.171.124/34n.8bd.myftpupload.com/wp-content/uploads/2017/03/Transnational_Crime-final.pdf (stating that desperation and greed drive the illegal organ trade because the recipient may face death unless they get a transplant and the vendor is seeking to alleviate debt or escape poverty).
 Facts: Did You Know?, Am. Transplant Found. (Aug. 12, 2021), https://www.americantransplantfoundation.org/about-transplant/facts-and-myths/.
 Steve Farrer, Why Illegal Trafficking in Organs is Growing Fast. . . But Few are Talking About It, Financial Crime News (June 16, 2020), http://thefinancialcrimenews.com/why-illegal-trafficking-in-organs-is-growing-fastbut-few-are-talking-about-itby-steve-farrer/.
 See Juan Gonzales, Ignacio Garijo, & Alfonso Sanchez, Organ Trafficking & Migration: A Bibliometric Analysis of an Untold Story, 17 Int’l J. Env’t Rsch. Public Health 1, 1 (May 2020).
 Lindsay Wagner, Organ Trafficking: More Than Just a Myth, Univ. Utah S.J. Quinney Coll. L. (Nov. 11, 2014), https://law.utah.edu/organ-trafficking-more-than-just-a-myth/.
 42 U.S.C. § 274e(a) (2022).
 42 U.S.C. 274e(b) (2022).
 See Wagner, supra note 7.
 Brooklyn Man Pleads Guilty in First Ever Federal Conviction for Brokering Illegal Kidney Transplants for Profit, FBI (Oct. 27, 2011), https://archives.fbi.gov/archives/newark/press-releases/2011/brooklyn-man-pleads-guilty-in-first-ever-federal-conviction-for-brokering-illegal-kidney-transplants-for-profit [hereinafter Illegal Kidney Transplant].
 See INTERPOL Report Highlights Human Trafficking for Organ Removal, Homeland Security Today (Oct. 4, 2021), https://www.hstoday.us/subject-matter-areas/border-security/interpol-report-highlights-human-trafficking-for-organ-removal/.
 Living Donation Information You Need to Know, United Network Organ Sharing 1, 5-6 (2021), https://unos.org/wp-content/uploads/Brochure-107-Living-donation.pdf (explaining that a directed donation is when you give an organ to a specific person and a non-directed donation is when you want to donate but do not know the person whom you will donate to).
 Id. at 20.
 Bahar Bastani, The Iranian Model as a Potential Solution for the Current Kidney Shortage Crisis, 45 St. Louis Univ. Health Sci. Ctr. 194, 194 (2018).
 Nasser Karimi & Jon Gambrell, In Iran, Unique System Allows Payments for Kidney Donors, AP News (Aug. 25, 2016), https://apnews.com/article/health-organ-donation-organ-transplants-dialysis-ap-top-news-bf5b96efde5b4ec89469ee8700312105.
 Id. (stating brokers receive no payment and help determine whether charities or a wealthy individual will help cover the cost for those who cannot afford to pay for a kidney).
 Frederike Ambagtsheer, Understanding the Challenges to Investigating & Prosecuting Organ Trafficking: A Comparative Analysis of Two CasesSpringer (June 2021).
 Tazeen H. Jafar, Organ Trafficking: Global Solutions for a Global Problem 54 Am. J Kidney Diseases 1145, 1150 (2009); Saba S. Shaikh & Courtenay R. Bruce, An Ethical Appraisal of Financial Incentives for Organ Donation 7 Clinical Liver Disease 109, 110 (2016).
 Adam Crepelle, Market for Human Organs: An Ethical Solution to the Organ Shortage, 13 Ind. Health L. Rev. 17, 66-67 (2016).
 Mavrellis, supra note 3, at 32.
 See Ambagtsheer, supra note 19 (explaining payments likely undermine altruistic donations).
 See Bastani, supra note 14, at 3.
 See Jafar, supra note 22, at 1151.
 See generally N.Y. Fam. Ct. Act §581-502 (2021) (stating “Compensation may be paid to a donor or person acting as surrogate based on medical risks, physical discomfort, inconvenience and the responsibilities they are undertaking in connection with their participation in the assisted reproduction.”).
 See Shaikh et al., supra note 25, at 111.
 See id. (suggesting that charitable contributions do not undermine the altruistic nature of donating organs).
 See Jafar, supra note 25, at 1145-46. (stating that a Newsweek magazine uncovered a trade in US hospitals with a network of brokers, clergymen, and surgeons involved in bringing “voluntary” donors from Brazil, South Africa, and other developing nations).