Criminal Law Means of Counteracting Illegal Trafficking in Human

Organs and Tissues

Andrey Anatolyevich Kochin

and Vera Ivanovna Kovalenko

FSIRI of the FPS Russia Moscow, Russian Federation

The Institute of State and Law of The Russian Academy of Sciences, Moscow, Russian Federation

Keywords: Illegal trafficking in organs and tissues, donor organs, human trafficking.

Abstract: The article examines the legal regime of human organs and tissues in Russia and the problems of criminal law

support for countering the illegal trafficking in donor organs. The authors’ goal is to research the problems of

law enforcement in the transplant industry and to develop criminal justice response to the illegal trafficking

in donor organs. The tasks of the research include the study of international and foreign experience in

countering the illegal trafficking in donor organs, an analysis of the legal regime for the trafficking in donor

organs and the problems of domestic law enforcement practice to detect and counteract their illicit trafficking,

negotiation of legal gaps and the relevance of the criminalization of offences related to the illegal trafficking

in human organs and tissues. The authors drew on the comparative legal method of research on international

and domestic legislation, materials of domestic law enforcement practice, expert reviews of the legal

regulation problems and prevention of illegal practices with donor organs. The novelty is characterized by

the criminal law provisions proposed by the authors on liability for offences related to illegal transplantation

practices.

1 INTRODUCTION

The fundamental principles and legal bases of

countering the illegal transplantation practice and the

trafficking in human organs and tissues are reflected

in international, regional (European) and national

regulatory documents.

In the era of the rapid development of innovative

technologies in the medical sector, the aim of criminal

law protection of constitutional human rights and

freedoms during the provision of high-tech medical

services and prevention of crimes in this area is of

extremely relevant.

According to the World Health Organization

(WHO), about 100,800 organ transplants are

performed annually all around the world. In the world

list of countries by the number of transplants, Russia

traditionally ranks in the third to fourth ten in the

number of donors and operations per 100 million

population.

In the current year (as of March 2021), according

to the V. I. Shumakov Federal Research Center of

https://orcid.org/0000-0001-6799-1513

https://orcid.org/0000-0001-7303-1762

Transplantology and Artificial Organs, 376

transplantation operations were carried out in Russia,

in 2020 - 1919 transplantation operations due to the

unfavorable sanitary and epidemiological situation

and the emergence of the COVID-19 pandemic. It is

less than in 2019, when more than 2.4 thousand

transplantation operations were performed (including

200 operations for children), while there were over

9.5 thousand patients on the waiting list.

The rapid emergence of the COVID-19

coronavirus pandemic predetermined a tense

situation in various spheres of life of the state,

especially in the medical sector, created new

challenges for specialists in the transplantation

industry of domestic medicine. In this regard,

specialists from the country's leading transplant

center, the V. I. Shumakov Federal Research Center

of Transplantology and Artificial Organs, warn about

the high risk of severe complications of COVID-19

for citizens who have undergone surgery and have

chronic diseases, it is proposed to seriously evaluate

Kochin, A. and Kovalenko, V.

Criminal Law Means of Counteracting Illegal Trafﬁcking in Human Organs and Tissues.

DOI: 10.5220/0010627200003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

21-26

ISBN: 978-989-758-532-6; ISSN: 2184-9854

the ratio of “potential benefits and risks of donor

organ transplantation” (Gautier, 2020).

The current Russian legislation generally

regulates all aspects of transplantation, however, as in

the rest of the world, Russia has a pressing need for

donor organs.

As State Secretary - Deputy Minister of Health of

the Russian Federation

D. Kostennikov said in an interview with TASS,

only about 30% of the total number of necessary

transplantation operations are performed in Russia,

which condemns a significant number of Russians to

serious health consequences, many of the waiting list

do not live up to operations.

The shortage of donor organs is a worldwide

problem, which leads to a large shadow market for the

purchase and sale of human organs and tissues.

The Istanbul Declaration dated 2008 prohibits all

forms of trafficking in organs. However, according to

authoritative international publications, with an acute

shortage of organs worldwide, the illegal trade in

organs amounts to about USD 1.5 billion annually

and as a result 12,000 illegal transplantations.

According to the information presented in the

report of Transnational Crime and the Developing

World in only five main organs about 11,966 illegal

transplantations are performed per year in the world,

the annual profits generated by transnational crime in

the field of trafficking in human organs and tissues

range from 840 million up to USD 1.7 billion.

On the basis of an analysis of the results of

scientific research and the state of domestic

transplantation, the authors suggest that, in the

context of a pandemic, crime associated with illegal

trafficking in organs has an unfavorable prognosis. In

this regard, we studied the problems of legal

regulation and law enforcement in the transplantation

industry in order to develop criminal justice response

to the illegal trafficking in donor organs. The tasks of

the research included the review of international and

foreign experience in countering the illegal

trafficking in donor organs, an analysis of the legal

regime for the trafficking in donor organs and the

problems of domestic law enforcement practice to

identify and counteract their illegal trafficking,

discussion of legal gaps and the relevance of

criminalization of offences related to trafficking in

human organs and tissues.

2 MATERIALS AND METHODS

An empirical study was performed by the authors in

2018-2020 by reviewing statistical data related to

transplantation activities, materials of Russian law

enforcement practice on the identification,

assessment and prevention of crimes in the area under

consideration, analyzing of expert assessments and

the results of a survey of specialists on the problems

of legislative regulation of the legal regime of donor

organs and tissues and problems of prevention of

criminal offences in this area.

3 RESULTS AND DISCUSSION

An analysis of the results of empirical study, the state

of legislation and law enforcement practice allowed

the authors to identify the main problems in the

research area.

In the criminological context, the impact of the

coronavirus pandemic on the transplant industry is

considered to be an extremely negative factor, not

only creating additional tension in the functioning of

this branch of medicine, and, consequently,

conditions for possible abuse (negligence, medical

error, abuse of authority), but also representing an

additional threat to the life and health of both

recipients and potential donors. Moreover, this factor

increases the shortage (and therefore the “price”) of

transplantable organs and tissues, and greatly

increases the number of patients needing

transplantation.

We agree with the views of foreign experts, who

rightly emphasize that “COVID-19 is an ideal storm

for victims of organ trafficking…. the pandemic has

not only caused devastation to millions of infected

people, but also caused a deadly side effect in the

form of an even more prosperous organ trafficking

industry.”

However, a comparative analysis of the indicators

of illegal transplantation practice showed that Russia

is the only country in which above-mentioned crimes

have not actually been registered in the past five

years, only a few facts of such offences were

previously recorded (three crimes were registered

under Article 120 of the Criminal Code of the Russian

Federation “Compulsion to remove human organs or

tissues for transplantation” (in 2005, 2006, 2015) and

two cases of human trafficking for the purpose of

illegal transplantation of human organs and tissues

(clause "g", part 2, article 127.1).

Russian specialists are unanimous in their

observation of serious gaps in the legal regulation of

criminal liability for acts related to the illegal

trafficking in donor organs. Scientists have paid the

closest attention to these issues in scientific

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

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publications (Nosanenko, 2019, Grishin, 2018,

Popova, 2018).

Despite the acute shortage of organs received

from living donors, which under the current

legislation can only be the patient's relatives, the issue

of so-called “intravital donation” in general does not

cause problems in law enforcement and medical

practice.

According to the Law of the Russian Federation

No.4180-I dated December 22, 1992 “On

Transplantation of human organs and (or) tissues”,

transplantation of organs and tissues is allowed only

with the consent of a living donor and, as a rule, with

the consent of the recipient (Article 1). A similar

norm is reflected in the Federal Law No. 323-FZ

dated November 21, 2011 "On the basics of health

protection of the citizens in the Russian Federation.”

In the foreign legal field, the informed consent

model is interpreted within the strictly defined legal

context of the algorithm and is subject to deep

research analysis by the professional community

(Grady, 2017), discussion and popularization in the

field of social and educational work among the

population.

In domestic medical practice, an insufficiently

developed mechanism for implementing the

"presumption of consent” in view of the low

awareness of citizens, generates collisions. Thus,

despite the fact that the procedure for the organization

of the collection of donor organs is regulated by

federal legislation and by the legal and regulatory acts

of the Ministry of Health (orders, instructions, rules),

the issue of the removal of organs and tissues from

the deceased (decedent) donor continues to be acute

and sensitive, both for the close relatives of the

potential donor and for medical workers who,

according to judicial practice, may be accused of

violating the instructions upon the removal

(collection) of an organ if they were not aware of the

will of the deceased or his relatives (see: The

determination of the Constitutional Court of the

Russian Federation in the case of A. Sablina) or

intentionally causing death for the purpose of using

the victim`s organs or tissues.

As evidenced by existing Russian law

enforcement practice, the absence of a request from

medical workers on the expression of will on the issue

of possible donation from relatives of the deceased

and removal by default, in accordance with the

existing presumption of consent, organs and (or)

tissues does not entail criminal liability, which causes

a sharply negative assessment relatives.

The legal professional community is considering

the concept of criminalizing the failure by medical

personnel to inform the victim's relatives about the

planned removal of the donor organ.

Currently, in accordance with the legislation in

force, a physician informs the spouse or other

relatives only about the fact of death, not of the

prospect of organ removal, and expects the donor`s

relatives about their refusal, and if there is no such

person or if it is not possible to contact the relatives

of the deceased within a specified period of time, the

removal of organs is considered possible.

There are no special provisions in the Criminal

Law on the criminal liability of medical personnel for

committing such acts, that is, for violation of the will

of the relatives of the potential (real) donor who

ignores the explicit or unequivocal disagreement of

relatives to the removal (exploitation) of organs.

The proposal under discussion in the legal

community to hold medical personnel criminally

liable for failing to notify relatives about the planned

posthumous organ removal, in our view, does not

have any immediate legislative prospect, since it

legally contradicts to the essence of the presumption

of consent, contained both in the existing legislation

and in the new bill.

It seems that in a situation of acute shortage of

transplants, the legislative substitution of the

“presumption of consent” model by the model of

“requested consent” can also have numerous negative

consequences, at least to cause an increase in cases of

coercion to the remove (collect) organs from living

donors, and will definitely multiply the number and

mortality of citizens in dire need and who have not

waited for transplantation.

The study of law enforcement (judicial) practice

allows us to state a very limited practice of

responding to violations of the current legislation in

this industry, which, of course, cannot testify in favor

of the fact that there are no such violations.

Thus, the analysis of the official statistical

information of the Ministry of Internal Affairs of

Russia, as well as the statistics of convicted persons

in the "Justice" system of the Judicial Department of

the Supreme Court of the Russian Federation on cases

related to the trafficking in donor organs, shows zero

indicators in recent years. Moreover, the declared

prohibition on the purchase and sale of human organs

and tissues has not received proper criminal law

support, and there is an obvious legal gap.

A study of criminal legislation showed that the

Criminal Code provides norms on liability for a

number of crimes related to the illegal removal of

human organs and tissues, in particular for:

 compulsion to remove human organs or tissues

for transplantation, committed with the use of

Criminal Law Means of Counteracting Illegal Trafﬁcking in Human Organs and Tissues

violence or with the threat of its use (Article

120 of the Criminal Code of the Russian

Federation);

 purchase or sale of a person... other

transactions with a person performed “in order

to remove organs or tissues from the victim

(clause “g”, part 2 Article 127.1 of the Criminal

Code of the Russian Federation);

 murder for the use of organs or tissues of the

victim (clause “m”, part 2, Article 105 of the

Criminal Code of the Russian Federation);

 intentional infliction of serious bodily harm,

committed in order to use the organs or tissues

of the victim (clause "g", part 2, Article 111 of

the Criminal Code of the Russian Federation).

The study of the above-mentioned crime elements

indicates that the aim, the illegal “removal of the

victim`s organs and tissues” (in human trafficking),

“use of organs or tissues” (in the case of murder or

intentional infliction of serious harm to the victim’s

health) is only qualifying signs of such offences,

which are subject to increased penalties. It is difficult

to characterize the acts and, at the same time, to

identify the elements of trafficking in persons and the

purchase and sale of human organs and tissues, which

are not even provided as a subject of the transaction

(purchase and sale).

In this regard, a paradoxical situation emerges:

currently, the doctrine of medical and criminal law

considers liability for the illegal purchase and sale of

organs, while the Criminal Code does not even

contain a provision on liability for such acts.

In the conditions of a large number of citizens

from the "waiting list" who, for medical reasons, need

to carry out a transplantation operation, an acute

shortage of donor organs and tissues, the absence of

transparent mechanisms for their trafficking, the

presence of obvious legislative gaps, complicating to

identify, qualify and prosecute the perpetrators, all of

this additionally generates "shadow" schemes for

their resolution, contributes to the further expansion

of the clandestine market for "purchase and sale" and

criminal traffic of transplants, the development of

transplantation tourism, fraudulent "mediation", and

in essence and demand of remuneration for the

allegedly prompt delivery or extraordinary receipt of

a deficient organ. All markers and digital traces of

such illegal activities are well traced both in the open

access and in the DARKNET shadow sector.

In this regard, it seems necessary to draw on the

extensive foreign experience, in which the most

common criminal schemes associated with the illegal

transplantation practice and the criminal trafficking in

human organs and tissues are identified and

established (Ambagtsheer, 2016, Broumand, 2017).

Despite a clear lack of developed law enforcement

practice, the real crime picture related to illegal

trafficking, buying and selling of organs is estimated

to be unfavourable, as can be inferred indirectly from

numerous digital “traces” in information and

communication networks.

Thus, in the Russian-language search system

Yandex, the number of requests “buy kidney” (as of

March 2021) was 16 million requests (8,737 shows

per month), “sell a kidney” – 3 million requests

(25,000 shows per month) while international and

Russian legislation prohibits such commercial

activities.

In accordance with Article 7of the Federal Law

dated March 13, 2006 38-FZ “On advertising” (as

amended on December 08, 2020), an advertisement

of “human organs and (or) tissues as objects of

purchase and sale” is not allowed (part 4). In the

context of an administrative claim, representatives of

the Prosecutor’s Office repeatedly appealed to the

court for the recognition of information on the

acquisition of donor organs for monetary

remuneration placed on the public Internet prohibited

to distribute and such claims are satisfied by the court.

In regard with the level of public risk associated

with large-scale advertising on the Internet for the

sale and purchase of donor organs, it seems

appropriate to consider the issue of criminalizing such

acts.

Simultaneously with the optimization of the

legislative support for the legal regime of information

about donor organs, it is necessary to strengthen

social and educational activities among the

population (Kovalenko, 2014), including by internal

affairs officers, since the latter are most fully aware

of illegal (i.e. fraudulent) schemes for the trafficking

in donor organs, have the necessary professional

qualifications and skills interact with citizens

(Kochin, 2016).

An attempt to resolve the existing gaps in the legal

regulation of transplant activities and the trafficking

in donor organs was the adoption and discussion of a

new draft law "On donation of human organs and

their transplantation” which is scheduled for adoption

and entry into force in June 2021.

The new draft law that “enshrines the presumption

of consent for posthumous organ donation, the

establishment of a federal register of donors and the

principles of transplantation services, however, as

rightly emphasized during the discussion, the issue of

a unified Federal register of people ready for

posthumous donation, as well as patients, who need

CLOSA 2021 - VII INTERNATIONAL SCIENTIFIC-PRACTICAL CONFERENCE “CRIMINAL LAW AND OPERATIVE SEARCH

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organ transplantation, how and where the decision of

people who refuse posthumous donation will be

recorded, where and how donor organs are received

has not yet been resolved. It is obvious that any "non-

transparency" in the solution of these issues creates

additional preconditions for their abuse in the course

of transplantation activities.

In this regard, it is also proposed to use a foreign

algorithm for organizing and distributing donor

organs, taking into account utility and fairness

(Schulte, 2018).

Transplantation of human organs and tissues is a

high-tech type of medical care and it is obvious that

medical manipulations can be carried out by highly

qualified specialists, and the support of such activities

should have powerful financial support.

By the order of the Ministry of Health of the

Russian Federation No. 365 dated June 04, 2019 (as

amended on November 09, 2020) "On the approval of

the departmental target program "Organ donation and

transplantation in the Russian Federation", the goals

and objectives of the departmental target program

were announced, in accordance with which medical

assistance by the method of transplantation

(transplants) of human organs will be able to receive

more than 15 thousand citizens, including children.

However, as foreign experience has shown, the

implementation of the national transplantation

program can significantly reduce, but not stop, the

illegal practice associated, in particular, with

transplant tourism (Ratkovic, 2018).

In this regard, legislative issues related to the

responsibility of the subjects of such activities and the

prevention of abuse should be resolved.

On the basis of international imperatives and

norms of Russian legislation, which directly prohibit

the commercialization of medical activities in

transplantation and trafficking in donor organs, taking

into account the problems of law enforcement

practice in identifying, investigating, qualifying and

prosecuting of perpetrators, criminologically based

forecasts of a sharp demand for donor organs and an

increase in the need for transplantation operations

under the impact of the negative consequences of the

coronavirus pandemic COVID-19, it seems

reasonable to apply a comprehensive approach, which

should include: optimization of the legal regulation of

medical activities in donor organ transplantation,

improvement of the criminal legal provision to

counteract the illegal trafficking in human organs and

tissues and the commercialization of transplant

medical manipulations, wider use of operational

search methods to detect criminal offenses, including

the use of information and communication

technologies, prosecution of perpetrators,

intensification of social and educational work with

the population in order to popularize knowledge and

awareness of the social value of organ donation and

risks (threats) participation in illegal schemes.

The mechanism of criminal law response to the

socially dangerous acts prohibited in legislation on

the transplantation and illegal trafficking in human

organs and tissues should include the optimal

criminal law instruments to protect citizens from the

criminal offences under consideration and to

prosecute those responsible.

4 CONCLUSIONS

The norms presented in Russian legislation

prohibiting the illegal trafficking in human organs

and tissues, as well as the commercialization of

transplant medicine, are more declarative in nature

and should be accompanied by standards, specifically

provided for in the criminal law.

In this regard, the authors consider it necessary to

submit for discussion a list of socially dangerous acts

that should be criminalized, including:

purchase and sale of human organs and tissues,

other transactions with donor organs for the

transplantation purposes;

purchase and sale of human organs and tissues not

specified in the transplant list of the Ministry of

Health of the Russian Federation as transplantation

objects;

removal (exteriorization) of organs and (or)

tissues after receiving information that the deceased

and (or) his relatives disagree with the removal of

organs and(or) tissues for transplantation, or willfully

ignoring it.

removal (exteriorization), procurement,

conservation, storage, traffic of transplants,

transplantation of human organs and (or) tissues in

organizations and institutions outside the (list) system

of State and municipal health-care institutions,

established by law;

illegal removal of human organs and (or) tissues

for the purpose of conducting experiments, ritual and

religious ceremonies;

repeated advertising of human organs and (or)

tissues as objects of sale and purchase in the mass

media and/or placement and distribution in the

information and communication network Internet of

information declared prohibited in accordance with

the current legislation;

Criminal Law Means of Counteracting Illegal Trafﬁcking in Human Organs and Tissues

Maintenance of records, registers, coordination of

“waiting list”, transplantation logistics by

commercial institutions, including medical profiles;

In the context of the unprecedented development

of the coronavirus pandemic, which has exposed a

large-scale threat to the health of the country's

multimillion population and the normal functioning

of the entire health care system, the issues of

improving the legal provision of life and health of

citizens and their criminal legal protection from

unlawful encroachments are a priority task of the

state. In this regard, the recognition of the

humanitarian value essence of transplantation of

human organs and tissues for medical reasons and the

noble mission of gratuitous donation of donor organs

in order to save the recipient's life should form the

basis of state policy in resolving legal, administrative,

medical, ethical problems of domestic

transplantation.

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