Electronic copy available at: http://ssrn.

com/abstract=2254341
global health and the law spring 2013 269
Transplant
Tourism: The
Ethics and
Regulation of
International
Markets for
Organs
I. Glenn Cohen
M
edical Tourism is the travel of residents of
one country to another country for treat-
ment.
1
In this article I focus on travel
abroad to purchase organs for transplant, what I will
call Transplant Tourism. With the exception of Iran,
organ sale is illegal across the globe,
2
but many desti-
nation countries have thriving black markets, either
due to their willful failure to police the practice or
more good faith lack of resources to detect it. I focus
on the sale of kidneys, the most common subject of
transplant tourism, though much of what I say could
be applied to other organs as well. Part I briey reviews
some data on sellers, recipients, and brokers. Part II
discusses the bioethical issues posed by the trade, and
Part III focuses on potential regulation to deal with
these issues.
I. Understanding Transplant Tourism Markets
There are three important players in the international
market for organs: sellers, recipients, and brokers. I
will summarize some data on each, but have discussed
the existing data in much greater depth elsewhere.
3

I will call those who sell their kidneys sellers not
donors, because donor connotes a certain amount
of altruism that, as we will see, is largely absent in
their motivations. The growth of transplant tourism
has many causes, including the scientic advances
enabling the widespread availability of the immune-
suppressive drug cyclosoporine, which has broad-
ened the community of potential kidney providers;
4

the growth of ageing populations in the developed
world and the rise of diseases of affluence, which
have increased demand for organs;
5
and nally, the
developing world has seen a growth of relatively high-
quality medical personnel who face low employment
opportunities and/or salary, making them more vul-
nerable to corruption and enabling the growth of the
black market.
6
Now let us discuss the available data.
7
a. Sellers
I will focus on data from three countries in South
Asia, but data from Egypt, Iran, and the Philippines is
largely of a piece.
8
To put this data into perspective, it is
worth emphasizing that a study of more than 80,000
live kidney donors in the U.S. found no diference in
their long-term mortality rates (median follow-up was
6.3 years) as compared to healthy matched controls,
suggesting that legal kidney donation in the U.S. is
very safe.
9
I. Glenn Cohen, J.D., is an Assistant Professor at Harvard
Law School. He is Co-Director of the Petrie-Flom Center for
Health Law Policy, Biotechnology, and Bioethics at Harvard.

Electronic copy available at: http://ssrn.com/abstract=2254341

270

journal of law, medicine & ethics
i. pakistan
10
Pakistan is one of the largest host centres for trans-
plant tourism in the world, with over 2,000 organs
sold per year, about two thirds of which go to for-
eigners (primarily from the middle east, south Asia,
Europe, and North America).
In February 2006, Syed Naqvi and his team inter-
viewed 239 kidney sellers (186 male, 53 female) in
District Sargodha, a province of Punjab in Eastern
Pakistan, an area that is overpopulated and socioeco-
nomically underdeveloped, with 34% of the popula-
tion living below the poverty line. They were able to
verify nephrectomy scars proving that surgery had
taken place in all but 2% of the sample.
The mean age of sellers was 33.6 years, with 52%
being ages 31-40 and 29% being ages 21-30. 66%
of those studied were bonded laborers working as
domestic servants or farm workers. Of the 53 women
in the sample, 20 were housewives and 33 were maids
who worked for landlords. Most had worked since
childhood, with a mean duration of around 19 years of
employment. 90% of the sellers were illiterate.
All sellers were quite poor. Of the 192 sellers who
agreed to answer questions on monthly incomes, 62%
earned $10-$30 USD a month, with a mean income
of $15.4 USD, while 32% earned less than $10 USD
and 6% earned more than $20. The 219 respondents
had between two and eleven dependents, with a mean
of 5.5. They were also saddled with debt, with 77%
of the 176 responders to the question reporting they
owed between $1000 and $2500 USD with a mean
of $1311.40 USD. 19% were still paying of the debt of
their father, uncles, or grandfathers. Many of the non-
responders indicated they did not know the actual
amount they owed because they had no documenta-
tion or answered too much.
Sellers were promised between $1146 and $2950
USD (mean $1737 USD) for their kidney, but no seller
in the sample was actually paid that price. The mean
amount received was instead $1377 USD with a range
of $819 to $1803 USD, largely because deductions
were taken for the costs of the nephrectomy, hospital
stay, and travel to and from home. In term of the recip-
ients, 29.7% of sellers indicated they had met or knew
the recipient, and 31% of this group indicated a local
recipient while 69% indicated a foreign one.
The authors tried to determine if the sellers viewed
themselves as better of because of the transplant and
sale and interviewed them a mean of 4.8 years after
the surgery. All sellers indicated that their health was
good before the transplant but only 1.2% said their
health was as good after it. 62% said they felt physi-
cally weak and were unable to work the long hours
they did before the transplant, and 36.8% said their
health was poor and they felt ill, suggesting that
they had to stop working for periods of time. When
it came to nances, 85% said there was no improve-
ment in their lives and they were either still in debt or
had not achieved their objectives. Only 4% indicated
they had paid of their debt, although some had used
the money for marriage, housing, or business. When
asked if they would encourage sale of kidney in the
family, 35% (83 sellers) said they would encourage a
family member to do so, with 75 of those 83 sellers
being bonded laborers.
ii. bangladesh
While it has been illegal to sell body parts in Bangla-
desh since 1999 (with nes and jail time as the pen-
alty), there is a growing organ trade in the country
where 78% of inhabitants live on less than $2 USD
a day.
11
As part of his ethnography of kidney sellers
in Bangladesh, Monir Moniruzzaman recently inter-
viewed 33 sellers (30 male, 3 female) in Dhaka, the
countrys capital.
Sellers were often initially recruited by advertis-
ing in local newspapers. A poor Bangladeshi contact-
ing the number provided ordinarily ends up in con-
tact with either a recipient or a broker. That person
emphasizes that they are seeking kidney donation,
which is a noble act, and that operation is very safe
and will be performed by a world-renowned special-
ist. The recipient promises to cover all expenses and
to compensate the seller. Typically, sellers are told a
Of the 192 sellers who agreed to answer questions on monthly incomes, 62%
earned $10-$30 USD a month, with a mean income of $15.4 USD, while 32%
earned less than $10 USD and 6% earned more than $20. The 219 respondents
had between two and eleven dependents, with a mean of 5.5. They were also
saddled with debt, with 77% of the 176 responders to the question reporting
they owed between $1000 and $2500 USD with a mean of $1311.40 USD.
SYMPOSI UM
global health and the law spring 2013 271
I. Glenn Cohen
story about the sleeping kidney, where selling a kid-
ney is presented as a win-win situation because while
removing one of their kidneys the transplant surgeon
awakens the other through medication, and the
seller is portrayed as living perfectly well. Moniruzzi-
mans interviewees also told him brokers had ofered
the seller land, a job, or a visa and foreign citizenship,
and that going abroad to India for transplant would be
fun and the seller can eat out, shop, and watch Indian
movies.
If the seller is persuaded to participate, the broker
tissue-types him and tries to nd a match. The seller
is ultimately ofered 100,000 Taka ($1,400 USD), on
average, but told he will not receive the entire amount
until just before entering the operating room for fear
the seller might renege.
The broker arranges a fake passport and forged legal
documents that indicate that the person is donating
a kidney to a relative, and advises the seller to hide
his identity so the Indian health care personnel do not
reject the case. In at least one instance, Moniruzziman
reports that a 38-year-old Hindu kidney seller under-
went circumcision in order to pass as a relative of his
Muslim recipient. After crossing the Indian border,
the broker seizes the sellers passport to ensure that
he cannot return to Bangladesh before the kidney is
removed. Those selling are housed in poor accommo-
dations, rooming with as many as 10 others in a bach-
elor apartment rented by the broker.
After the surgery, Moniruzziman reports that sellers
have a 20-inch scar along their bodies, which could
have avoided by using a laparoscopic surgery result-
ing in a small four inch incision (but costing an addi-
tional $200 USD). Sellers are typically released from
the hospital after ve days into what Moniruzziman
describes as the brokers unhygienic apartment, and
return to Bangladesh a few days after despite the doc-
tors orders to rest in India. Some sellers experience
bleeding from their wound on the train ride back to
Dhaka.
Upon return to Bangladesh, the sellers face several
problems. 27 out of the 33 sellers did not receive the
full amount of money they had been promised. Though
they repeatedly called the buyer to receive what they
are owed, the buyer ofered them little sums of money
each time and claimed the need to deduct numerous
hidden expenses. In at least one case, a seller and his
wife were physically abused and threatened with jail
when they disputed the charges. Sellers typically used
the money they were paid to pay of debts, start a busi-
ness, pay bribes to get a job, or arrange a dowry. 78%
of the sellers reported that their economic condition
deteriorated after the surgery with many sellers losing
jobs or being able to work fewer hours due to physical
deterioration.
Moniruzziman also reported that the sellers health
profoundly deteriorate in the postvending phase
and that they experienced numerous physical prob-
lems and went through severe psychological sufer-
ing, referring to themselves as handicapped. The
symptoms included pain, weakness, weight loss, and
frequent illness after selling their kidneys. Moniru-
zziman also notes that none of the sellers he inter-
viewed could aford the biannual postoperative health
checkup, which costs only 1,500 Taka ($22 USD).
Finally, sellers had to confront stigma due to their
20-inch scar. Male sellers with a scar are referred to as
a kidney man, and sellers try to hide them, make up
stories about an accident, and sometimes decide not
to get married as a result. 79% of his sellers reported
becoming socially isolated. Many referred to the day
of their operation as their death day. In his sample of
33 sellers, 85% spoke against the organ market, with
many (he does not give an exact number) saying if they
had a second chance they would not sell their kidneys.
In contrast to most of the bioethics literature where
organ buyers are themselves portrayed as desperate
because they are unable to secure a tissue match from
a family member, Moniruzziman claims that many
Bangladeshi recipients who can aford to do so pur-
chase organs from the poor, rather than seeking organ
donation from their family members.
iii. india
In 2001 Madhav Goyal led a team of researchers
examining the lives of 305 kidney sellers in Chennai,
India.
12
A 1994 Indian law bans the sale of kidneys and
requires that all transplant centers have an authori-
zation committee reviewing all potential living unre-
lated donors to determine that donations were made
for altruistic and not commercial reasons. Neverthe-
less, a signicant trade in selling kidneys persists in
India. Although the study was not limited to trans-
plant tourism, there is good reason to think that many
of these kidneys ultimately went to foreign recipients.
Of the 305 sellers Goyal and the team interviewed,
71% were female and 29% male, from 20 to 55 years
of age with a mean of 35 years. 65% of the female sell-
ers and 95% of the males worked as laborers or street
vendors. They were promised between $450 USD and
$6280 USD for their kidney with a mean of $1410
USD, but actually received between $450 USD and
$2660 USD with a mean of $1070 USD. Both middle-
men and clinics promised on average about one third
more than they actually paid.
In terms of their motivations for participating, 96%
indicated it was to pay of debts. There were some gen-
272

journal of law, medicine & ethics
SYMPOSI UM
der gaps: 30% of the women said it was because their
husband was the breadwinner while 28% said it was
because their husband was ill. Two women reported
that their husbands forced them to donate, but the
study authors note that number may underestimate
how prevalent this was because interviews were con-
ducted with other family members present.
The nancial efects of donation were largely neg-
ative. On average, sellers experienced a one-third
decrease in average annual family income from a
mean of $660 before the surgery to $440 after it.
13
The
percentage of sellers below the poverty line increased
from 54% before to 71% after the surgery. Of the 292
participants who were motivated to sell by paying of
debts, 74% still had debts at the time of the study.
Change in health status was measured using a
ve point Likert scale. 13% of participants reported
no decline in their health after the transplant, 38%
reported a 1 to 2 point decline, and 48% reported a 3
to 4 point decline. Of all the participants, 50% com-
plained of persistent pain at the site of the nephrec-
tomy and 33% complained of long-term back pain.
All sellers were asked what they would advise some-
one who was selling a kidney for the same reason
they did. Of the 264 responding, 79% recommended
against selling a kidney.
b. Studies of Recipients
Far less work has been done on transplant tourists who
receive kidneys, in part because they have engaged in
illegal activity. Still, I report the results of three rela-
tively recent studies of North American recipients.
The evidence is more mixed here than on the seller
side, but does suggest some problems.
Jagbir Gill and his colleagues studied 33 kidney
transplant recipients who were U.S. residents who
had traveled outside the U.S. for kidney transplants
but returned to UCLA for follow-up care.
14
The
authors compared the tourists to a matched group
(on age, race, transplant year, dialysis time, previous
transplantation, and donor type) of 66 patients who
had their transplant done at UCLA. While the study
did not code for whether the patient had purchased
an organ, it did determine whether the donor was a
living related (12%), living unrelated (61%), or dead
donor (12%), and there is good reason to suspect most
living unrelated donations involved kidney sale. In
terms of their destination for transplant, 42% went
to China, 18% Iran, 12% the Philippines, 9% India,
and one recipient each went to Pakistan, Turkey, Peru,
Mexico, Egypt, and Thailand. Most patients travelled
to their region of ethnicity. The tourists had slightly
older mean ages (47.3%) and were more likely to be
Asian and had spent less time on dialysis than the
matched cohort, suggesting that the transplant was
sought instead of dialysis.
In terms of results, tourist patients had a higher
cumulative incidence of acute rejection in the rst
year after transplant (30% vs. 12%, P = .02). One-year
graft survival was lower for tourists than the matched
cohort (89% vs. 98%), but the result was not statisti-
cally signicant. There was no overall diference in the
incidence of infections in the tourist versus matched
cohort, but the infections the tourist patients did have
were much more severe. Tourists were much more
likely to be hospitalized due to infections (27% v. 6%),
with a range of 1 to 744 days in the hospital (and a
mean of 12.5 days).
In a second study, Muna Canales and co-authors
identied ten patients who traveled abroad for kid-
ney transplantation and returned to the University
of Minnesota Medical Center or Hennepin County
Medical Center for post-transplant care between
September 16, 2002 and June 30, 2006. 60% of the
group was male, and 40% female, the mean age was
36.8 years, and all were born outside the U.S. (8 were
Somali, 1 was Chinese, 1 was Iranian). Only two of the
ten patients were not on the hospitals waiting list for
kidney transplant before they left the country. Three
of the ten patients had disclosed their intent to travel
abroad for transplant before they left. Nine of the ten
had received kidneys from living donors.
The authors collected signicant data on the health
of these patients, but most important for our pur-
poses was their conclusion that [g]raft and patient
survival were comparable to results obtained for
patients transplanted in the United States, while
noting that prior studies had conicting ndings as
to whether transplant tourists had worse results.
15
Nevertheless, they noted several problems: there was
inadequate communication between the transplant
site and their institution relating to vital informa-
tion on induction therapy, immunosuppressive and
post-transplant courses of treatment. In three of the
cases, the patients were sent back to the U.S. in the
midst of a crisis relating to wound infection, seizure,
and acute rejection, where such documentation would
have been very helpful.
16
In a third study, Prasad and colleagues examined
20 Canadian transplant tourists who sought follow-up
care after a kidney transplant at St. Michaels Hospi-
tal in Toronto, Canada. All 20 patients were legal per-
manent residents or citizens of Canada who received
chronic kidney disease management in Canada and
had gone abroad to receive a live kidney donation from
a non-biologically, non-emotionally related kidney
seller outside of Canada between January 1, 1998 and
February 28, 2005. They compared this group to those
global health and the law spring 2013 273
I. Glenn Cohen
who received live kidney transplants from biologically
related individuals (n=175) and from emotionally but
not biologically related individuals (n=75) in Canada.
Transplant tourists were more likely to be born
outside Canada (P<0.0001) and to be nonwhite
(P<0.0001). All but three of the 20 tourist patients
received the transplant in their region of birth, with
12 going to South Asia, 4 going to East Asia, 4 going to
the Middle East, and 1 to Southeast Asia (there were
22 transplants for 20 patients).
In terms of outcomes, the authors found that graft
survival at 36 months was worse in the tourist group
compared to the biologically-related (P<.0001) and
emotionally related (P<.01) transplant groups. They
also found that 52% of the patients in transplant
tourist group had serious post-transplant infections
that were considered opportunistic, and two of these
patients died due to fungal-infection related sep-
sis. While the transplant patients were on the same
immunosuppressive drug regimes as the Canadian
patients, the higher rate of infection was ascribed to
poor immunosuppression monitoring, post-trans-
plant hygiene, or delayed recognition. Surgical com-
plications were also frequent at initial presentation,
including wound infection.
17
They found that many of
these patients were very ill on arrival back to Canada
requiring intensive medical treatment, that medical
documentation was sparse and in unfamiliar lan-
guages making emergency care difficult, and that
many of these patients underwent lengthy travel too
soon after the surgery.
c. The Brokers
Transplant tourism is a complicated business, requir-
ing nephrologists, nursing staff, blood and tissue
labs, surgical teams, passports, visas, air travel, sur-
gical equipment, and getting immigration ofcials to
cooperate.
18
Given this complexity, it is not surprising
that the process is managed by what Scheper-Hughes
characterizes as a new international network of body
Maa ranging from the sleazy (and sometimes armed
and dangerous) underworld kidney hunters of Istan-
bul and Cesenau, Moldova to the sophisticated but
clandestine medical tourism bureau of Tel Aviv and
Manila to the medical intermediaries posing as reli-
gious or charitable trusts and patients advocacy orga-
nizations founded in downtown Philadelphia, Brook-
lyn, and Chinatown New York City.
19
This is a very heterogeneous cast of characters,
including: an Israeli charitable organization that
over time morphed from helping Israeli children get
expensive cancer treatments in the U.S. to facilitat-
ing travel to the U.S. for transplant when the waiting
lists at home were too long;
20
outlaw surgeons who
practice their illicit operations in rented, makeshift
clinics, or, when political conditions allow, in the oper-
ating rooms of some of the best public or private cen-
ters in Israel, Turkey, Romania, Iraq and Europe.
21

For example, Scheper-Hughes reports on the case
of Rabbi Levy-Izhak Rosenbaum, an orthodox rabbi
with an ofce in Borough Park, Brooklyn, who ran a
very lucrative organ brokerage enterprise that would
buy kidneys from vulnerable Israelis and sell them for
$160,000, and became the rst man ever convicted
under a U.S. statute banning the sale of organs.
22

Lower down in the pecking order are the small-time
criminals in the employ of highly sophisticated Maa
involved in all kinds of trafcking in human bodies.
23

Many of these brokers are themselves former prosti-
tutes and kidney sellers who now approach young men
in Mingir and Chisenau in Moldova to make money.
24

Now that we have a clearer picture of what the
transplant tourism trade actually looks like, we are
poised to examine the bioethical and regulatory ques-
tions that surround it.
II. The Bioethical Questions
Given these disturbing realities, should we prohibit
transplant tourism? Three arguments are commonly
deployed against organ sale generally:
Corruption: allowing the sale of organs to go
forward will do violence or denigrate our views
of how goods (organs, personhood) are properly
valued,
25
in that it may dehumanize society by
viewing human beings and their parts as mere
commodities.
26
Crowding Out: allowing the sale of organs
will cause individuals who would have donated
organs to instead sell them, thus reducing the
number of donated organs, or it will cause indi-
viduals to refuse to donate at all, leading to an
overall reduction in procured organs.
27
This
claim has its roots in behavioral economic work
on motivational crowding out, suggesting that
contrary to the classical economic model allow-
ing payment for goods may change its social
meaning in a way that discourages altruistic giv-
ing and ultimately decreases supply.
28
Coercion: Poor sellers are coerced into selling
their organs by brokers or recipients who have
no right to propose this, because they have no
reasonable economic alternative.
29

Elsewhere I have explained in-depth why I nd each
of these three arguments against the market want-
274

journal of law, medicine & ethics
SYMPOSI UM
ing,
30
and thus will not dwell on these issues here. I
will say a little more about the corruption argument
here only because it might be thought of as more of an
in principle objection to transplant tourism.
I do not nd the corruption argument the most
powerful one for condemning transplant tourism for
several reasons. First, the corruption argument often
is premised on something like Immanuel Kants Cat-
egorical Imperative by suggesting that the nature of
humans as free and rational beings is such that to
treat them simply as means (use goods) rather than
ends in themselves (non-use goods) is to do violence
to the way human beings ought to be valued.
31
But it
is not clear why we ought to strongly identify my per-
sonhood with an organ of mine that can be removed
while leaving that personhood intact, and this objec-
tion to transplant tourism would seem to prove too
much in condemning the selling of blood or human
hair, and potentially all labor as well. Second, as I
have examined in depth elsewhere, this argument
seems to prove too much in that if some goods have
unique value such that selling them constitutes value
denigration, it is unclear why giving them away is not
also value denigrating, in that the giver is exchanging
them for nothing or other incommensurable goods
like the joy of helping others.
32
Third, the argument
typically presents a false dichotomy between com-
modication of the organs or non-commodication.
In fact, as Julia Mahoney shows, Organ Procurement
Organizations, the institutions that procure organs
from donors and deliver them to transplant programs
pursuant to the system established and administered
by UNOS, receive payments from transplanting hos-
pitals and also transplant programs and the surgeons
who staf them often make money from the transplant
process.
33
Thus, even with organ sale bans in place it is
inevitable that these organs are commodied, and the
only question is whether the kidney source will receive
the fruits of that commodication or not. One could
instead ask the surgical staf and other individuals to
volunteer their time, use their special talents to con-
tribute to the gift of life, and demand that they forego
the payment they desire to avoid corrupting that gift.
Why do we not make that demand from them as well?
Because we know that without that payment they are
very unlikely to participate in the numbers needed,
but that is potentially true of organ providers as well.
Moreover, there is a way in which the corruption
argument proves too much in that even altruistically
donated organs are commodied in this way, such that
to be consistent those pressing this argument should
also condemn organ donation.
Finally, to the extent the version of the corruption
argument that prompts our concern is what I call
consequentialist corruption that we must pre-
vent changes to our attitudes or sensibilities that will
occur if the practice is allowed, for example that we
will regard each other as objects with prices rather
than as persons
34
as I have argued in more depth
elsewhere sales of kidneys from the developing world
may have less efects on home country mores than sale
domestically, in which case the home countrys justi-
cation for regulation is lessened.
35
Indeed, transplant
tourism may act as a safety valve that prevents law
change to permit organ purchase domestically.
36
A pair of other arguments, exploitation and undue
inducement, deserve a closer look, which I will give
them below, but ultimately I think the strongest argu-
ment for prohibiting transplant tourism sounds in
bounded rationality and justied paternalism.
a. Exploitation and Undue Inducement
Exploitation comes in several varieties, but two
dimensions are particularly useful for our purposes:
(1) harmful versus mutually advantageous exploita-
tion, which will turn on whether both parties (the
alleged exploiter and the alleged exploitee) reasonably
expect to gain from the transaction as contrasted with
the pre-transaction status quo and (2) consensual
versus non-consensual exploitation.
37
Let us assume,
momentarily, that transplant tourism involves con-
sensual exploitation a matter I discuss below and
ask what follows.
To determine that A has wrongfully exploited B,
philosophers usually stipulate that two requirements
must be met: (i) A benets from the transaction, (ii)
the outcome of the transaction is harmful (harmful
exploitation) or at least unfair (mutually advantageous
exploitation) to B, and A is able to induce B to agree to
the transaction by taking advantage of a feature of B
or his situation without which B would not ordinarily
be willing to agree.
38

It seems uncontroversial that the rst requirement
is met. While the aforementioned studies on recipi-
ents suggest that some transplant tourists die or end
up with serious infections or complications after the
transplant, we do not have a baseline for their indi-
vidual health in the absence of the transplant such
that we can say they have not benetted. Moreover,
from an ex ante perspective, they have certainly
gained from increased chances of improving their
health.
39
Is the second requirement met? Is the seller harmed
or treated unfairly, and is the buyer unfairly taking
advantage? As Wertheimer stresses in his account, the
correct frame for answering this question is to con-
sider whether ex ante the seller is all things consid-
ered better of.
40
Why all things considered? Almost all
global health and the law spring 2013 275
I. Glenn Cohen
transactions make us better of in some respects and
worse in others. A father who decides to work in a low-
paying job rather than spend time at home raising his
young daughter is in some ways better of (he makes
money, enjoys professional achievement) and in some
ways worse of (he has lost time spent with his child).
The mere fact that he has lost something, or that he
would not work absent the benets, is not enough to
make his relationship with his employer exploitative
or to say he has been harmed. Instead, the right frame
is to consider whether, all things considered, his gains
outweigh his losses. The same is true in the much
more extreme case of the kidney seller, who may expe-
rience health, social, and economic decits for the sale
but also benets relating to reduction of indebtedness,
paying a daughters dowry, etc. Naqvis study suggests
that that many kidney sellers viewed their kidney sales
in exactly this way, noting that: in our study popu-
lation where [the] majority were illiterate and many
in bonded labour, [the available] opportunities were
far lessTherefore, despite their bad experience, they
still preferred to [sell kidneys] in desperation to pay
of debts, and/or to save another son or daughter from
bondage.
41
Further, the right perspective to evaluate the harm
or unfairness to the seller is ex ante not ex post. If A
sells land to B on which B hopes to nd oil, it should
not be the case that the transaction is exploitative in
a possible world where B does not nd oil but not
exploitative in a possible world where B does nd oil.
42

What should matter is whether there was harm or
unfairness from the ex ante perspective, which mirrors
contract doctrines on unconscionability.
43
The correct
frame to determine if something morally wrong was
afoot was the price A charged B based on Bs expecta-
tions at the time of transaction, not how things ulti-
mately turned out. Now things might be diferent if
A deceived B about the chances that their would be
oil there, but that is an information decit that goes
to the consensual versus non-consensual nature of the
transaction, which I turn to in the next section.
While the ethnographic and statistical studies dis-
cussed above suggest that ex post many of the kidney
sellers have been harmed, and in fact all things con-
sidered a large percentage (but not all of them) would
rather they had not donated, that is the wrong ques-
tion to ask for the exploitation analysis. The right ques-
tion is whether ex ante the transaction harmed them
or benetted them. That they agreed to do it is strong
evidence that they ex ante believed themselves to be all
things considered benetted rather than harmed by
the transaction. If that is right, then transplant tour-
ism appears to be a case of mutually advantageous
exploitation.
Labeling a transaction as mutually advantageous
exploitation does not render it per se unproblematic,
but it requires us to determine if the seller is nonethe-
less treated unfairly. The mere fact that a buyer takes
advantage of a sellers unfortunate or unjust back-
ground situation is not enough to render the transac-
tion unfair. Otherwise, a surgeon who demands a high
fee for amputation when faced with a patient without
any other good alternatives would be exploiting the
patient, as would the tow truck driver who demands
a fee to the stranded motorist, but we ordinarily think
such transactions are unproblematic.
44
Nor can we
judge the fairness of the transaction by the welfare
actually derived by both parties from the transac-
tion as against the baseline where no transaction
took place and simply look to see whether the benet
is unequal.
45
Even if the surgeon charges a very high
price for amputation, the patient whose life is saved
(or at least hopes his life will be saved) by the doctor
certainly comes out ahead, all things considered. Yet
the inequality in their welfare gain does not make us
think the patient is exploiting the doctor!
46

What we need instead is a kind of moralized base-
line, a sense of how much the person ought to receive,
to which we can compare what they actually are prom-
ised in the transaction. This is not an easy problem
to resolve. Wertheimer has suggested we can some-
times use a hypothetical market approach to establish
the relevant baseline, wherein we imagine what price
would obtain in an unpressurized market.
47
If the price
paid by the purchaser for a kidney to the seller is lower
than the price the seller would get in a hypothetical
market where the seller is not pressured to transact,
then the buyer has exploited the seller.
48

This approach runs into problems as to transplant
tourism, however, for reasons that Fabre notes in her
discussion of domestic organ markets: unlike the mar-
ket for shovels in the middle of a snow storm, where
we have an unpressurized market to compare to (the
price of shovels on sunny days), there is no unpres-
surized market for organs, in that those who want to
sell their organs would not do so if they could raise
money by other means; those who want to buy organs
are (usually) in desperate need of them.
49
Perhaps
the best we could do, suggests Fabre, is to examine
whether individuals are willing to take similar risks for
similar prices in similar unpressurized markets?
50
As
to transplant tourism, it is not clear exactly where this
would lead us. Compared to what the typical organ
seller makes in the labor market, the sum being paid
by the broker (even when only 2/3 is actually paid) is
huge, and it is unclear it is disproportionate in its risk/
benet ratio as compared to being a day laborer, for
example, on relatively unsafe job sites. On the other
276

journal of law, medicine & ethics
SYMPOSI UM
hand, those comparison markets are often themselves
somewhat pressurized, in that many individuals would
not accept day laboring if not required to support their
families or pay of debts related to bonded labor. Then
again, that is true of employment in general, many
would not work but for the need for remuneration.
While I cannot prove that the terms being ofered to
kidney sellers are fair in the sense this analysis uses
the term, neither does it seem clearly unfair.
Thus, I think it not clear that transplant tourism
involves a morally problematic form of exploitation
of sellers. Even if we concluded it was, though, that
would not justify a legal intervention banning trans-
plant tourism outright.
If the seller is harmed or treated unfairly, the
natural solution is to improve the size of her benet
doing so makes it less likely that she is all things
considered harmed and/ treated unfairly by the buyer
possibly by a price oor. This bears a resemblance
to what Wertheimer calls the strategic intervention
argument, regulation such as minimum wage laws for
labor that makes some terms (e.g., some prices) in an
ofer prohibited, but does not render any transaction
for sale of that good or service per se forbidden, may
induce a party to ofer more.
51

Further, the risk is that an outright ban justied
to protect exploited parties might problematically
make them worse of. Peggy Radins work on surro-
gacy and baby selling nicely captures the threat: [i]f
poverty can make some things nonsalable because we
must prophylactically presume such sales are coerced,
we would add insult to injury if we then do not provide
the would-be seller with the goods she needs or the
money she would have received[i]f we think respect
for persons warrants prohibiting a mother from sell-
ing something personal to obtain food for her starving
children, we do not respect her personhood more by
forcing her to let them starve insteadthis aspect of
liberal prophylactic pluralism is hypocritical without
a large-scale redistribution of wealth and power that
seems highly improbable.
52
Call this the hypocrisy
argument.
The cross-border nature of transplant tourism
exacerbates this worry: if the U.S. took further steps
to block its patients from buying kidneys from Paki-
stans poor, it has few tools for efectuating this kind
of re-distribution of resources to Pakistans poor who
are now denied access to the revenue from the sale as
compared to kidney sales within the U.S.
Succinctly: It is hard to defend an outright ban
on transplant tourism for the sake of protecting the
would-be exploited victims, if the ban makes them
worse rather than better of. In theory the right legal
corrective is price oors, or other improvement of
terms, rather than outright prohibition.
I say in theory, because in a second-best
world one might still prefer the complete
ban on either epistemic (we cannot be
sure whether most of the transactions
are harmful or mutually advantageous)
53

or regulatory (we cannot effectuate a
price oor and a ban is better than the
best intervention we can otherwise
implement) grounds, or both.
How well does the existing empirical evidence on
transplant tourism discussed above justify either form
of this second-best argument? On the epistemic ver-
sion of the argument, when we take the ex ante all
things considered perspective, it seems that most
of these transactions are mutually advantageous.
Because most of the existing trade takes place against
laws rendering kidney sale illegal, there is some reason
to believe that gentler legal interventions like price
oors may also be circumvented. On the other hand, if
we created a legal safe harbor for transplant tourism
given certain transactional terms, it might produce a
new normal and push out the organized crime rings
and other unsavory elements that currently domi-
nate the market. Finally, we ought to be sensitive to
the hypocrisy arguments concerns discussed above
and the difculties in ensuring redistribution in the
transplant tourism setting. While the matter is close, I
do not think an outright ban can be defended even on
this second-best version of the exploitation argument.
There is another argument lurking in the back-
ground, one that comes to the fore in my discussion
of price oors: undue inducement. Although often
labeled exploitation, in fact this argument is the
opposite. Exploitation is the claim the seller is getting
ofered too little, while undue inducement is the claim
that they are being paid too much, the ofer too good
to refuse, which naturally suggests a price ceiling not
oor. While there may be some social practices with
other logics such as research ethics with its whifs
of duciary relationships and social benet where
the undue inducement argument has merit (and even
here I have some doubts), in the context of selling ones
body I must confess that the logical basis of this argu-
ment escapes me. In this context, price ceilings seem
Succinctly: It is hard to defend an outright ban
on transplant tourism for the sake of protecting
the would-be exploited victims, if the ban
makes them worse rather than better of.
global health and the law spring 2013 277
I. Glenn Cohen
infantilizing of the poor and seem to retard rather
than promote these individuals self-interest, includ-
ing by reducing the chance they will get out of debt
and also impairing their ability to self-insure against
possible negative health or psychological outcomes.
Once again, the hypocrisy argument looms large and
we should be wary of interfering with these transac-
tions unless we are committed to redistribution that
makes these individuals just as well of without selling
their kidney.
b. Consent and Paternalism
I have assumed thus far that any exploitation in trans-
plant tourism is consensual. Is it? Consent is a bit of
a weasel-word, but can usefully be divided into three
constituent parts, whether an individuals agree-
ment to a transaction is voluntary, informed, and
competent.
54
Is consent to selling ones kidney voluntary? In the
basest sense of not done under threat of force, yes,
though the empirical evidence discussed above sug-
gested occasional cases where threats of force are used
to induce initial compliance, and more often coercive
techniques like threats of force or withholding of pass-
ports are used to ensure that individuals do not back
out. Apart from these instances, the lack of other good
options itself cannot be enough to make the transac-
tion involuntary, for the reasons I suggested above.
Is the sellers consent informed? The existing stud-
ies suggest frequent problems with the accuracy of the
information provided to sellers: sellers were misin-
formed about safety, the quality of the doctor perform-
ing their surgery, and falsely assured with the myth of
the sleeping kidney, the promises of citizenship or a
job, the pleasantness of the conditions in India where
the transplant will take place, and not informed about
the possible physical and stigmatic consequences of
the surgery. Sellers were also misled into thinking they
would be paid substantially more than they were actu-
ally paid.
Even when individuals are presented all relevant
information, they may lack the competence or capacity
to efectively process that information. Psychological
research nds that even highly educated individuals
are bad at understanding risk and susceptible to sig-
nicant framing efects, especially in health care set-
tings.
55
As the studies above suggest, many sellers are
poorly educated and illiterate, although we ought to be
careful not to equate those facts with incapacity. I think
the best approach to considering the issue is data-sen-
sitive rather than blanket demographic conclusions.
Although we cannot very easily tease out whether
the cause of the problem is misleading information,
over-optimism bias or other forms of bounded ratio-
nality,
56
the evidence here suggests there is a problem.
In the Pakistan and India studies only 35% and 21%
of sellers, respectively, recommended that a family
member or friend sell their kidney; in the Bangladesh
study 85% of sellers spoke against the organ market,
with many (an exact number is not given) stating they
would not sell if given a second chance. The fact that
a very high number of kidney sellers later regret their
choices for reasons that likely involve informational
decits, bounded rationality, etc., is to me the stron-
gest argument in favor or legal intervention. Yet the
argument faces a few obstacles:
First, we lack good information on exactly what
is causing the sellers to have so much regret, which
seems important in determining whether an outright
ban is necessary. As discussed above, many sellers
do not get paid what they are promised and instead
receive closer to two thirds of the promised amount.
If a regulatory intervention was capable of eliminating
that problem, would the high amounts of ex post regret
remain? Moreover, as I mentioned above, the litera-
ture on altruistic kidney donation in the U.S. suggests
that kidney donors have health outcomes as good as
non-donors, while the data on transplant tourism sug-
gests signicant (self-reported) health decits. Indeed,
given the literature on adaptation to disability and
mitigation over time of the negative efects of health
setbacks on happiness, this may suggest that even this
high level of regret the sellers self-report may under-
estimate the true negative efects on their health.
57
If
the mechanism causing the regret is negative health
outcomes owing from poor screening of seller health
care, surgical, or post-surgical health care, in principle
there may be more targeted regulatory interventions
that can improve the situation such as mandating stan-
dard for health assessment, care, and the like.
Second, the usual remedy for problems of ex post
regret is not an outright ban on a practice but improve-
ment in information-provision and libertarian pater-
nalist interventions such as altering default rules in
ways that inuence behavior while also respecting free-
dom of choice or debiasing strategies that help
people either to reduce or to eliminate over-optimism,
framing efects, or other forms of bounded rationality
in their decision-making.
58
In the transplant tourism
context, this would lead us to implement regulations
designed to ensure that sellers were provided accurate
information on their likely health outcomes post-trans-
plant, on the likelihood that the money received would
be successfully used for their goal (e.g., debt elimina-
tion), information on the likelihood of post-transplant
regret, and that all of this was presented in an informed
consent process that makes it comprehensible to some-
one with little formal education, and uses framing and
278

journal of law, medicine & ethics
SYMPOSI UM
other debiasing strategies to try to quell bounded ratio-
nality difculties. It would also lead us to regulation to
make sure that sellers received what they were prom-
ised in terms of remuneration.
The kind of regulation needed for this would be
expensive, extensive, difcult to implement, and dif-
cult to audit. This would be true if it was just a mat-
ter of putting in place regulation at the domestic level,
but the problems are likely to be worse with transplant
tourism, where three countries are typically involved
(the buyers, the sellers, and the location of transplant)
and there is a real fear of regulatory race to the bot-
tom, where the countries least willing to take action
will be the ones who become the go-to destination for
recruiting sellers or engaging in transplants. Moreover,
because there are so many stigmas attached to kidney
sale in these societies, it will be difcult for word of the
ex post regret of prior sellers to circulate widely. Thus,
while in a rst-best world of perfect regulatory imple-
mentation, the consent decits identied would lead to
targeted correctives, the question is whether in the real
world we are unlikely to avoid the problems identied
with anything short of an outright prohibition?
The Working Group on Incentives for Living
Donation, consisting of Arthur Matas at the Uni-
versity of Minnesota and Sally Satel at the American
Enterprise Institute among many others, has recently
published its Proposed Standards for an Internation-
ally Acceptable System, which are meant to establish
the groundwork for a regulated incentive system,
that is, legalized organ sale.
59
They envision that
under their system [e]ach country will need to enact
guidelines for evaluation and selection of donors,
institutional oversight, clearly dened policies for
follow-up, outcome determination and for detection
of irregularities with appropriate penalties.
60
More-
over, they envision a system where the donor must
be fully informed so that they adequately understand
all risks and the nature and method of distribution of
the benet.
61
Because I have argued that the chief con-
cern with transplant tourism is not the in-principle
objections (such as the corruption arguments) but the
paternalism/regret problem, evaluating their proposal
(or others like it) would require examining how well
it would actually combat these concerns and whether
it would receive sufcient buy-in and implementation
by destination countries to blunt the illegal trade.
Because their proposals are thus far untested, the
matter remains open, and I do not purport to fully
evaluate the issue here, but judging from Irans experi-
ence with a regulated kidney market, there are reasons
for not being too sanguine that regulation can forestall
these problems. Iran has robust regulation of kidney
selling all renal transplantation teams belong to
universities and the costs of the transplant are paid by
the government with no incentives allowed to trans-
plant teams. Sellers are provided health insurance
and an award from the government, and most are also
provided a rewarding gift arranged before the agree-
ment from the recipient or a charitable organization.
The Iranian Society for Organ Transplantation care-
fully monitors all transplants for ethical violations.
62

Nevertheless, Zargooshis study of 300 kidney sellers
in Iran nds that 85% of them would denitely not
sell their kidney again, and 76% strongly discouraged
potential vendors from doing so.
63
If the concerns
about ex post regret persist in the one heavily regu-
lated legal kidney sale market, this should cause some
skepticism as to the superiority of regulation to out-
right prohibition.
Third, and more philosophically, paternalist argu-
ments for outright bans are controversial at a politi-
cal theoretical level, in that libertarians reject them.
64

As Tony Kronman astutely observed almost three
decades ago, one pressing a paternalistic argument
to block a voluntary transaction has an obligation to
explain why such interference is permissible in some
instances but not in others for only in this way can
the legitimacy of paternalism be established and its
limits dened.
65
In this case such a limiting principle might be:
where many sellers of a good are being given false
information, are poor, desperate, and uneducated,
and where their ex post regret is quite high (routinely
above 70%), and where the practice has signicant
negative efects on their health and economic fortunes,
and where information-providing and other gentler
correctives will not be efective, we should prohibit a
practice outright. To be sure, there are losers in such
a move, not only the recipients who desperately need
organs and the brokers who make a living mediating
the trade, but the proportion of sellers (likely between
15% and 35% based on the above-discussed studies)
who sell their kidneys and are, by their ex post assess-
ment, glad that they did. They can legitimately press
the hypocrisy argument on us, and lament that we
have protected them out of their ability to get out of
bonded labor and otherwise improve their lot in life.
We can respond that we remain committed to mak-
ing their lives better, to ending bonded labor and lift-
ing people out of poverty, but the cynics among us will
note that the headway we make on those lofty projects
will be slow in coming, if it ever does. Instead it is bet-
ter to look them in the eye and say while we recog-
nize that you feel you have benetted from this trade, a
clear majority of your neighbors nd themselves worse
of after selling their kidneys and deeply regret what
they have done. Sometimes regulatory prohibitions to
global health and the law spring 2013 279
I. Glenn Cohen
protect the many will burden the few, and that is the
price of living in a just society. Will they be satised?
Perhaps not. But we should be.
66
III. Regulatory Possibilities
If transplant tourism should be prohibited either
because we want to end international organ sales
altogether, or because we want to root out the bad
forms of the practice alongside introducing the kind of
potential regulated market discussed above we then
face the regulatory design question of the best way to
do so. Here I will argue for a multi-modal strategy,
and briey outline its four elements.
a. Destination Country Enforcement
The most obvious solution would be to allow individ-
ual countries to ban kidney sale in their territory and
prosecute medical tourists who purchase kidneys there
or the brokers who facilitate the transactions. Since
every country but Iran currently criminalizes kidney
sale, our legislative work would be almost done! There
have been a few prosecutions initiated in Brazil, South
Africa, Kosovo, Turkey, and the U.S of international
organ rings in the last few years in.
67
Overall, however,
as the case studies above suggest, transplant tourism
persists in spite of ofcial legal sanctions on the books.
Writing in the American Journal of Transplanta-
tion in 2011, Frederike Ambagtsheer and and Willem
Weimar observe that [o]nly in very few cases have
crime control eforts led to accusations by victims and
prosecutions of the accused, in part because organ
trafcking may be one of the most difcult crimes to
detect and because its enforcement is not a priority
of local, national and international law enforcement
Institutionsuniversal response to the crime is char-
acterized by punitive condemnation through legisla-
tion but awareness and expertise on how to detect and
enforce the crime is practically nonexistent.
68
Thus, while domestic destination country criminal
prosecutions should be continued, they are unlikely on
their own to be efective in ending transplant tourism.
b. Professional Self-Policing and International
Documents
In 2008, an international meeting was convened in
Turkey by the Transplantation Society and the Inter-
national Society of Nephrology that resulted in the
Declaration of Istanbul.
69
The Declaration denes
its key term, organ trafcking, as the recruitment,
transport, transfer, harbouring or receipt of living
or deceased persons or their organs 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 to, or
the receiving by, a third party of payments or benets
to achieve the transfer of control over the potential
donor, for the purpose of exploitation by the removal
of organs for transplantation.
70
The Declaration also
denes [t]ransplant commercialism as a policy or
practice in which an organ is treated as a commodity,
including by being bought or sold or used for mate-
rial gain, and states that [t]ravel for transplanta-
tion becomes transplant tourism if it involves organ
trafcking and/or transplant commercialism or if the
resources (organs, professionals and transplant cen-
tres) devoted to providing transplants to patients from
outside a country undermine the countrys ability to
provide transplant services for its own population.
71
Principle 6 of the Declaration calls for a ban on
soliciting or brokering for the purpose of transplant
commercialism, organ trafcking or transplant tour-
ism, as well penalties for acts such as medically
screening donors or organs, or transplanting organs
that aid, encourage or use the products of organ
trafcking or transplant tourism; and concludes that
practices that induce vulnerable individuals or groups
(such as illiterate and impoverished persons, undocu-
mented immigrants, prisoners, and political or eco-
nomic refugees) to become living donors are incom-
patible with the aim of combating organ trafcking,
transplant tourism and transplant commercialism.
72

Among the Declarations proposals, two are worth
highlighting. First, its statement that [t]he determi-
nation of the medical and psychosocial suitability of
the living donor should be guided by the recommen-
dations of the Amsterdam and Vancouver Forums,
including informed consent, assessment of psycho-
logical impact, and psychosocial evaluation by mental
health professionals as part of screening.
73
Second,
the Declaration makes clear that [c]omprehensive
reimbursement of the actual, documented costs of
donating an organ does not constitute a payment for
an organ, but is rather part of the legitimate costs of
treating the recipient, if costs are calculated using a
transparent methodology, consistent with national
norms. These costs may include lost income and
out-of-pocket expenses, including medical expenses
incurred for post-discharge care of the donor, [and]
lost income in relation to donation (consistent with
national norms), so long as reimbursement is done by
the agency handling the transplant rather than paid
directly from the recipient to the donor.
74

While it is clear that much of the rhetorical force
of the Declaration stems from its focus on the vulner-
ability of subjects as the reason for its interdictions, it
is much less clear what policy the Declaration would
advocate if, by hypothesis, sellers were not vulnerable.
There are indications in both directions in the Decla-
280

journal of law, medicine & ethics
SYMPOSI UM
ration. In condemning [o]rgan trafcking and trans-
plant tourism, the Declaration notes that they violate
the principles of equity, justice and respect for human
dignity and should be prohibited, and the reference
to human dignity might be thought of as a concern
akin to corruption that extends beyond merely the
vulnerable seller. In the very next sentence, however,
the Declaration again returns to its focus on vulner-
ability, stating that [b]ecause transplant commercial-
ism targets impoverished and otherwise vulnerable
donors, it leads inexorably to inequity and injustice and
should be prohibited, and the reference to inexora-
bly might be thought to reject the hypothetical situ-
ation altogether. Finally, in the section on what may
be compensated without violating the Declaration, the
limitations to carefully dened [l]egitimate expenses
appears to apply across the board, whether or not the
seller is impoverished. It is possible this ambiguity was
intentional, and in commenting on the Declaration
the American Society of Transplant Surgeons noted
that the Declaration does not specically address the
possibility or propriety of a limited, controlled trial of
donor incentives as a means to increase organ dona-
tion, which the Society supported as an experiment in
the United States.
75
The Declaration is meant to complement a few
earlier international documents that address trans-
plant tourism. The rst is the World Health Assem-
bly (WHA) approval of the WHO guiding principles
on organ transplantation in 1991, and as amended in
2004. The 2004 version encouraged the use of living
kidney donors where possible, the harmonization of
global transplant practices, and most importantly for
our purposes it requested the Director-General of
WHO to provide support for member states to prevent
organ trafcking and to draw up guidelines to pro-
tect vulnerable groups from the practice and urged
member states to act against transplant tourism and
international organ trafcking.
76
The second is the
2000 United Nations Protocol to prevent, suppress
and punish trafcking in persons, especially women
and children, supplementing the United Nations con-
vention against transnational organized crime, which
explicitly includes in its denition of trafcking the
removal of organs and rejects consent as a relevant
defense.
77
As of February 2010 there were 117 signato-
ries, including India, but not Bangladesh or Pakistan.
78

Have these measures been successful in dampening
transplant tourism? A precise answer is impossible,
but at least one set of informed academic observers,
Leslie and James Francis, have claimed that these
measures have been met with limited implementa-
tion success at both the domestic and international
levels, which they ascribe to the lack of direct
enforcement mechanisms making these statements
hortatory at best.
79
They suggest these interventions
lack[ing] the imprimatur of an international judi-
cial body, have failed because while they may have
stimulated the [s]tates with vulnerable populations
[to take] action to protect their citizens from groups
that prey on the poor to secure organs, the better of
states continue to face chronic and serious imbal-
ances between seriously insufcient local supplies and
expanding demands from an aging population and
their failure to monitor, develop, or enforce trafck-
ing restrictions except the sale of organs between
their own residents threatens to undermine nascent
eforts in donor nations to restrict trafcking.
80
That said, supporters of the Declaration have argued
that it has played an important role in shifting the mind-
set of transplant surgeons. In particular Frank Delmo-
nico, a leading transplant surgeon at Harvard Medical
School and a force behind the Declaration, has done
yeomans efort cataloging countries compliance with
the Declaration and other law reforms.
81
These docu-
ments likely played a role in some important domestic
attempts to curb organ tourism for example, a recent
ban on organ sale in Egypt and the Philippines, and
a Japanese investigation into alleged transplant tour-
ism of its citizens to China, and strengthening of laws
in Israel and Pakistan, even if their efectiveness has
been questioned.
82
Nevertheless, I think the lesson is
that these documents are unlikely to, on their own, suf-
ciently address the problem of transplant tourism.
83
Transplant tourism involves a complex and expensive medical process.
Home countries can discourage their citizens from engaging in transplant
tourism by making these patients ineligible for insurance coverage
relating to an illegal kidney transplant.
global health and the law spring 2013 281
I. Glenn Cohen
c. Home Country Measures: Insurance and
Extraterritorial Criminalization
While few academics or policymakers have focused
on this kind of regulation, home countries can make
signicant progress in deterring transplant tourism
by adopting their own measures that govern their own
citizens who receive organs illegally purchased abroad.
Transplant tourism involves a complex and expen-
sive medical process. Home countries can discourage
their citizens from engaging in transplant tourism by
making these patients ineligible for insurance cover-
age relating to an illegal kidney transplant. In the U.S.
system, the regulators may have inadvertently already
given the Centers for Medicaid & Medicare Services
(CMS), which promulgates rules relating to the pay-
ment of those eligible for the Medicaid and Medi-
care public assistance programs, the power to do so.
As part of the informed-consent process for patients
seeking transplantation, patients must be informed
that if a transplant is not provided in a Medicare-
approved transplant center it could afect the trans-
plant recipients ability to have his or her immu-
nosuppressive drugs paid for under Medicare Part
B.
84
These drugs, which are required to avoid tissue
rejection, are expensive and cost a kidney transplant
patient about $15,000 to $20,000 annually.
85
I have
found no data on how often this power has been used
to deny or threaten to deny coverage for those who
have engaged in transplant tourism, but CMS could
certainly alter the regulation to implement a at bar
on covering such drugs or other expenses for those
who have used transplant tourism. Universal health
care systems could also adopt similar measures.
However, only a portion of the American popula-
tion (around 90 million people) are covered by these
assistance programs,
86
and many transplant tourists
are unlikely to be among this group. In order to deter
those who are privately insured in the U.S., individual
U.S. states could use their powers regulating health
insurance to forbid insurers from reimbursing for
costs related to transplant tourism.
87
Blocking pub-
lic and private health insurance reimbursement for
extremely costly follow-up care would likely dramati-
cally reduce the amount of transplant tourism, leaving
it as a viable option only for those who can self-nance
not only the organ purchase itself but also all follow-
up care.
Is such a response too draconian? I am told by
those in the tissue transplant community that the
most likely result of tissue rejection from failing to
receive immunosuppressive drugs will be the need to
remove the newly transplant organ, but there is some
chance of additional health complications including
possibly death. Transplant and other physicians will
no doubt nd it difcult to watch patients undergoing
tissue rejection they could prevent, especially in cases
of serious complications where there is a threat that
in some percent of cases this intervention will trans-
form transplant tourism into an ofense with a de facto
death penalty.
While I do not intend to try to fully resolve the mat-
ter here, I think there are a few responses to this kind
of objection: rst, if the rule is clearly publicized and
applied only prospectively, the home country is likely
to signicantly deter transplant tourism especially
for those who are opting for it as an alternative to dial-
ysis such that there will be few (if any) on whom the
penalty is actually imposed.
Second, unlike in capital or corporal punishment,
one is not imposing sufering or death on an individual.
Indeed, one is not even prohibiting access to immuno-
suppressive drugs or other therapies when purchased
out of pocket. All the proposal does is set the terms of
an entitlement to a particular kind of insurance cover-
age in the public or private sector. In the U.S. Medi-
care/Medicaid context and in universal health care
systems where the question is one of rationing we
cannot cover all individuals for everything that will
improve their health, and indeed in the U.S. immuno-
suppressive drugs are currently covered for only three
years post-transplant by Medicare
88
it merely gives
those who have achieved their transplant by a crimi-
nal violation less priority. The nexus is quite tight. The
proposal does not give those who committed a crime a
general diminution in priority for health care as a pun-
ishment, but instead treats their criminal acquisition
of an organ as a specic forfeiture of their priority over
other deserving claimants for state-funded health care
related to that act. If transplant tourism is understood
as a crime that victimizes the recipient, then we can
understand paying for immunosuppressive drugs as
allowing individuals to prot from their crimes. The
law often provides tools to deprive those who commit
crimes of their ill-gotten gains,
89
and while depriving
someone who broke the law through transplant tour-
ism of the kidney itself might be thought to go too far
in its invasion of bodily integrity, barring their insurer
from covering their post-operative needs seems much
more defensible. Israel has already adopted a form of
this approach by limiting insurer reimbursement for
transplant tourism.
90
In the private insurance market the correct
approach is less clear. Because the costs of dialysis are
considerably larger over a patients expected life than
the cost of kidney transplant and immunosuppressive
drugs,
91
insurers on their own are likely to prefer to
cover transplant tourism rather than the alternative,
unless mandated to do otherwise. Still, I think such
282

journal of law, medicine & ethics
SYMPOSI UM
intervention is appropriate. In the U.S. at least, the
governments power to regulate what is covered by
private health insurance is relatively unquestioned,
and symmetry on the private and public system is
desirable to avoid unfairness to those using the public
system.
As an alternative or in addition, home countries
could alter their existing prohibitions on organ sale
and purchase such that they apply to extraterritorial
activities of their citizens. For example, in the U.S. the
National Organ Transplant Act of 1984, which prohib-
its the sale of kidneys and other organs, does not apply
extraterritorially.
92
Therefore, if a U.S. citizen travels
abroad to buy an organ his act is not prohibited by
NOTA, and it is generally accepted that more general
U.S. laws prohibiting trafcking do not apply to these
sales.
93
However, consistent with international and
domestic law the U.S. could make NOTAs prohibition
on organ sale applicable to those who purchase kid-
neys outside the U.S. as well, for reasons I have dis-
cussed elsewhere.
94
Detecting violations of domestic law that occur
abroad is no easy feat, and it is important to design
context-specic ways of implementing the prohibition.
Since prescriptions are required for immunosuppres-
sive drugs, it is possible that doctors could be induced
to monitor and report patients who have engaged in
transplant tourism, as could hospitals in which follow-
up care is sought. Involving doctors in such reporting
situations would impinge on the doctor-patient rela-
tionship. However, doing so seems in keeping with
other reporting duties already imposed upon physi-
cians including the abuse of children or the elderly.
95

While one might try to distinguish those provisions by
suggesting that they are aimed at preventing future
abuses of the patient, it is not clear why deterring
such abuses before they happen is not an equally wor-
thy goal. In any event, other reporting requirements
such as gunshot or other violent wounds are primarily
about crimes that have already occurred.
96

There are benets and drawbacks to each of these
methods of home country regulation. Extraterrito-
rial extension of domestic criminal law on organ sale
avoids the death penalty objection of the insurance
route because it carries with it only nes or jail time
and reaches even those who are self-nanced. On the
other hand, the insurance approach may ofoad some
of the professional responsibility concerns of doctors
onto insurers instead and may enable easier detec-
tion of malfeasance due to the existing requirements
for submitting claims to private and public insur-
ers. Home countries should experiment with both
approaches.
d. Improving the Supply and Allocation of
Organs Locally
Finally, we should couple measures aimed at deterring
transplant tourism with measures aimed at increasing
the supply of organs locally in patients home coun-
try thereby diminishing demand for transplant tour-
ism.
97
For present purposes, I will just list the kinds
of interventions that have been tried and deserve fur-
ther support: changing the law as to the denition of
death to make cadaveric donation easier by expand-
ing the donor criteria to encompass donation after
cardiac death (DCD) donors; moving from opt-in to
opt-out (presumed consent) regimes for cadaveric
donation; improving organ yield and quality through
better organ preservation and clinical management;
encouraging donation through public messaging and
education (in particular, focused on secondary school
students); improving willingness to donate by creat-
ing organ chains and preferential receipt programs for
those who have themselves been donors.
98
Developed
and developing countries keen on reducing transplant
tourism should adopt and encourage others to adopt
these kinds of measures alongside eforts aimed at
deterring transplant tourism.
IV. Conclusion
Transplant tourism is a tragic and increasingly com-
mon response to worldwide shortages of organs. The
outlook one gets from the empirical data on these mar-
kets and their efects on sellers is bleak indeed. While
the bioethical case for intervention is not without its
difculties, I have shown that there is a strong argu-
ment to justify prohibiting these practices that relates
to decits in information provided to sellers and their
bounded rationality.
Attempting to prohibit transplant tourism also
raises a series of difcult regulatory design choices.
While I think that destination country domestic crim-
inal enforcement ought to be continued, it has proven
insignicant on its own. In this article I have pressed
in particular for increasing home country attempts
to deter transplant tourism. It is my hope that these
measures, along with the work of international societ-
ies and institutions and increased attempts to increase
the supply of organs in tourists home countries, will
signicantly reduce transplant tourism.
Acknowledgements
I thank Cansu Cana, Marcelo Rodriguez Ferrere, Colleen Flood,
Jim Greiner, Adrian Laani, Holly Lynch, Trudo Lemmens, Michele
Goodwin, Michelle Meyer, Ben Roin, Jed Shugerman, Jef Sko-
pek, and Mark Wu for comments on earlier drafts. I also thank
participants at the 2012 National Health Conference in Toronto,
Canada. Kaitlin Burroughs and Jonathan Schenker provided excel-
lent research assistance.
global health and the law spring 2013 283
I. Glenn Cohen
References
1. See, e.g., I. G. Cohen, Protecting Patients with Passports:
Medical Tourism and the Patient-Protective Argument, Iowa
Law Review 95, no. 5 (2010): 1467-1567; I. G. Cohen, Medi-
cal Tourism, Access to Health Care, and Global Justice, Vir-
ginia Journal of International Law 52, no. 1 (2011): 1-51; I.G.
Cohen, Circumvention Tourism, Cornell Law Review 97, no.
6 (2012): 1309-1398. While I use the term medical tourism
because it is the conventional term used by the industry, and in
many instances it is partially supported by the tourism indus-
try in the destination country, I do not mean to suggest any-
thing pejorative or that those using these services are engaged
in something frivolous. Medical travel or cross-border care
could be used just as easily for my purposes.
2. As I discuss below, even in Iran it is subject to signicant regu-
lation of who can sell and buy organs.
3. See the chapter on Transplant Tourism in my forthcoming
book. I. G. Cohen, Patients with Passport: Medical Tourism,
Law, and Ethics (under contract, Oxford Univ. Press).
4. See S. Yea, Trafcking in Parts: The Commercial Kidney Mar-
ket in a Manila Slum, Philippines, Global Social Policy 10, no.
10 (2010): 358-376, at 362; N. Scheper-Hughes, Bodies for
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quant, eds., Commodifying Bodies (London: Sage Publications
Ltd, 2002): 1-9.
5. E.g., Yea, supra note 4, at 362.
6. E.g., id.
7. Because of the short length of this article I focus on quantita-
tive data, but there is also a rich set of narrative data collected
by anthropologists on the subject. See, e.g., Scheper-Hughes,
supra note 4; N. Scheper-Hughes, Rotten Trade: Millenial
Capitalism, Human Values, and Global Justice in Organ Traf-
cking, Journal of Human Rights 2, no. 2 (2003): 197-226; L.
Cohen, The Other Kidney: Biopolitics Beyond Recognition,
Body & Science 7, no. 2 (2001): 9-29; L. Cohen, Where It
Hurts: Indian Material for an Ethics of Organ Transplanta-
tion, Zygon Journal of Religion and Science 38, no. 3 (2003):
135-165.
8. See Yea, supra note 4; D. Budiani-Saberi and F. Delmonico,
Organ Trafcking and Transplant Tourism: A Commentary on
the Global Realities, American Journal of Transplantation 8,
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tive Mortality and Long-Term Survival Following Live Kidney
Donation JAMA 303, no. 10 (2010): 959-966.
10. The descriptive material from this section is drawn from S.A.
Anwar Naqvi et al., A Socioeconomic Survey of Kidney Ven-
dors in Pakistan, Transplant International 20, no. 11 (2007):
934-939.
11. The descriptive material from this section is drawn from M.
Moniruzzaman, Living Cadavers in Bangladesh: Bioviolence
in the Human Organ Bazaar, Medical Anthropology Quarterly
26, no. 1 (2012): 69-91.
12. The descriptive material from this section is drawn from M.
Goyal et al., Economic and Health Consequences of Selling a
Kidney in India, JAMA 288, no. 13 (2002): 1589-1593.
13. The authors noted that it was unlikely that these declines rep-
resented a secular trend since per capita income has increased
by 10% (or 37% adjusted for ination) in the region in the 10
years preceding the study, and between 1988 and 2001 there
was a 50% decrease in the proportion of the population living
below the poverty line. See Goyal, supra note 12, at 1592.
14. The description is culled from J. Gill et al., Transplant Tour-
ism in the United States: A Single-Center Experience, Clinical
Journal of the American Society of Nephrology 3, no. 6 (2008):
1820-1828.
15. M. T. Canales et al., Transplant Tourism: Outcomes of United
States Residents Who Undergo Kidney Transplantation Over-
seas, Transplantation 82, no. 12 (2006): 1658-1660 (citing
S. Kennedy et al., Outcome of Overseas Commercial Kidney
Transplantation: An Australian Perspective, Medical Journal
of Australia 182, no. 5 (2005): 224-227; M.S. Sever et al.,
Outcome of Living Unrelated (Commercial) Renal Transplan-
tation, Kidney International 60, no. 4 (2001): 1477-1483).
16. This nding mirrors those found in other studies of transplant
tourism, though many are from much earlier periods. Id. at
1660 (citing N. Invanoski et al., Renal Transplantation from
Paid Unrelated Donors It Is Not Only Unethical, It Is Medi-
cally Unsafe, Nephrology Dialysis Transplantation 12, no.
9 (1997): 2028-2029; Z. Morad and T. O. Lim, Outcome of
Overseas Kidney Transplantation in Malaysia, Transplant
Proceedings 32, no. 1485 (2000): 224-227; A. Salahudeen et
al., High Mortality Among Recipients of Bought Living-Unre-
lated Donor Kidneys, Lancet 336, no. 8717 (1990): 725-728).
17. Unfortunately the authors do not provide equivalent numbers
for the two control groups on these measures, which would
better enable us to put this into perspective.
18. See Scheper-Hughes, supra note 7, at 214.
19. Id.
20. Id., at 215.
21. Id., at 217.
22. N. Scheper-Hughes, The Body of the Terrorist: Blood Libels,
Bio-Piracy, and the Spoils of War at the Israeli Forensic Insti-
tute, Social Research 78, no. 3 (2011): 849-886, at 849; Guilty
Plea to Kidney-Selling Charges, New York Times, October 27,
2011, available at <http://www.nytimes.com/2011/10/28/nyre-
gion/guilty-plea-to-kidney-selling-charges.html> (last visited
January 9, 2013); M. Lysiak and C. Melago, Sweeping Federal
Probe Nabs Crooked Politicians & Alleged Black-Market Kid-
ney Peddler, New York Daily News, July 24, 2009, available
at <http://www.nydailynews.com/new-york/sweeping-federal-
probe-nabs-crooked-politicians-alleged-black-market-kidney-
peddler-article-1.398289#ixzz1ph5ANDSe> (last visited Janu-
ary 9, 2013). The fact that even poor Israelis, undoubtedly part
of the developed and not developing world, are sometimes the
sellers of kidneys is a good reminder that the colonial narrative
of developed world buyers and poor developing world sellers,
though often true, is not always accurate. Michele Goodwin
has made a similar argument as to the portrayal of African-
Americans in discourse on organ markets in the U.S., that it
portrays them as vulnerable victims in a way she perceives to
be infantilizing and fails to recognize that they may be a major
beneciary as organ recipients as well. M. Goodwin, Private
Ordering and Intimate Spaces: Why the Ability to Negotiate
is Non-Negotiable, Michigan Law Review 105, no. 6 (2007):
1367-1385.
23. See Scheper-Hughes, supra note 7, at 215.
24. See N. Scheper-Hughes, Trafc in Human Organs, Current
Anthropology 41, no. 2 (2011): 191-224.
25. Council on Ethical and Judicial Afairs of the American Medi-
cal Association, Financial Incentives for Organ Procurement:
Ethical Aspects of Future Contracts for Cadaveric Donors,
Archives of Internal Medicine 155, no. 6 (1995): 581-589, at
581.
26. See, e.g., I. G. Cohen, Note, The Price of Everything, the Value
of Nothing: Reframing the Commodication Debate, Har-
vard Law Review 117, no. 2 (2003): 689-710, at 691-692; M.
J. Radin, What, If Anything, Is Wrong with Baby Selling?
Address at McGeorge School of Law, Pacic Law Journal 26,
no. 2 (1995): 135-145, at 143-145 (discussing similar arguments
as reproduction); E. Anderson, Value In Ethics And Economics
(Cambridge: Harvard University Press, 1995): at 144, 172.
27. See, e.g., Institute of Medicine of the National Academies,
Organ Donation: Opportunities for Action (2006): at 243;
G. M. Danovitch and A. B. Leichtman, Kidney Vending: The
Trojan Horse of Organ Transplantation, Clinical Journal of
the American Society of Nephrology 1, no. 6 (2006): 1133-1134.
284

journal of law, medicine & ethics
SYMPOSI UM
28. E.g., B. S. Frey, Not Just For the Money: An Economic Theory
of Personal Motivation (Cheltenham: Edward Elgar, 1997);
See R. Titmuss, The Gift Relationship: From Human Blood to
Social Policy (New York: Pantheon Books, 1970). There is also
a variant of the argument focused on loss of opportunities for
altruism.
29. For those making variants of this argument. See, e.g., M. Good-
win, Black Markets: The Supply and Demand of Body Parts
(New York: Cambridge University Press, 2006): at 12; F. L.
Delmonico, The Development of the Declaration of Istanbul
on Organ Trafcking and Transplant, Nephrology Dialysis
Transplantation 23, no. 11 (2008): 3381-3382; Danovitch
and Leicthman, supra note 27; N. Scheper-Hughes, Keep-
ing an Eye on the Global Trafc in Human Organs, Lancet
361, no. 9369 (2003): 1645-1647; Naqvi, supra note 10, at
937; Goyal et al., supra note 12, at 1592. This formulation fol-
lows A. Wertheimer, Coercion (Princeton: Princeton University
Press, 1987): at 192-208, 267, 272-74. See also A. Wertheimer,
Exploitation in Clinical Research, in J. S. Hawkins and E.
J. Emanuel, Exploitation in Developing Countries: The Ethics
of Clinical Research (Princeton: Princeton University Press,
2008): at 63, 71; C. Fried, Contract As Promise: A Theory of
Contractual Obligation (Cambridge: Harvard University Press,
1981): at 104.
30. See Cohen, supra note 3.
31. See Cohen, supra note 26, at 696-700 (citing I. Kant, Ground-
ing for the Metaphysics of Morals (J. W. Ellington, trans.,
Hackett Publishing Company, 1785, 1981): at 434.
32. See Cohen, supra note 26, at 700-710.
33. J.D. Mahoney, The Market for Human Tissue, Virginia Law
Review 68, no. 2 (2000): 163-223, at 179-180, 195. Indeed, a
study from the year 2000 found that in the U.S. 70% of the
organ procurement agencies regulated by the federal govern-
ment sold body parts directly to for-prot rms, generating
huge prots. M. Goodwin, Altruisms Limits: Law, Capac-
ity, And Organ Commodication, Rutgers Law Review 56,
no. 2 (2004): 305-407, at 383. One such rm, Regeneration
Technologies Inc., RTI, generated $73 million in revenues in
1999 by processing a third of the human tissue donated in the
United States, turning body parts into products for surgery
and other medical procedures. D. E. Winickof, Governing
Population Genomics: Law, Bioethics, and Biopolitics in Three
Case Studies, Jurimetrics Journal 43, no. 2 (2000): 187-228,
at 189 n.9 (2003).
34. See Cohen, supra note 26, at 692 n.13; S. Altman, (Com)mod-
ifying Experience, Southern California Law Review 65, no. 1
(1991): 293-340, at 294-297.
35. See Cohen, Circumvention Tourism, supra note 1.
36. Id.
37. See Wertheimer, supra note 29, at 68.
38. E.g., C. Fabre, Whose Body is it Anyways? Justice and the Integ-
rity of the Person (Oxford: Oxford University Press, 2006): at
142. Fabre breaks the second condition into two, id., but I nd
it more useful to treat it as one.
39. Fabre disagrees and takes a more ex poste position on this, see
id., at 142-143.
40. See Wertheimer, supra note 29, at 71.
41. See Naqvi et al., supra note 10, at 937.
42. See Wertheimer, supra note 29, at 71.
43. Restatement (Second) of Contracts 208 (1981).
44. See Wertheimer, supra note 29, at 71.
45. See id., at 73.
46. See id., at 73.
47. See Wertheimer, supra note 29, at 230-36; Fabre, supra note
38, at 144.
48. Id., at 144.
49. Id.
50. Id.
51. Id., at 81; Cf. Fabre, supra note 38, at 148-152. As I have
observed elsewhere, notice how this particular intervention
of increasing the price paid may make worse the corruption
problem on some accounts, because it now seems more true
that the money being paid is in value equilibrium with what
has been given up by the seller. See Cohen, supra note 26, at
703-710.
52. M. J. Radin, Market-Inalienability, Harvard Law Review
100, no. 8 (1997): 1849-1937, at 1910-1911. For a more ambiva-
lent version of this argument in the organ sale context, see E.
Rivera-Lopez, Organ Sales and Moral Distress, Journal of
Applied Philosophy 23, no. 1 (2006): 41-52, at 44-48.
53. See Wertheimer, supra note 29, at 82. The same may be true
for doubts about consent, which I discuss in the next section.
54. See Wertheimer, supra note 29, at 76-77.
55. See, e.g., R. Korobkin, Bounded Rationality, Standard Form
Contracts, and Unconscionability, University of Chicago Law
Review 70, no. 4 (2003): 1203-1295, at 1229-1236 (reviewing
evidence for one of the most robust ndings of social science
research on judgment and decisionmaking is that individu-
als are quite bad at taking into account probability estimates
when making decisions.); Cohen, Protecting Patients with
Passports, supra note 1, at 1467-1567, at 1467, 1493, 1509-1511,
1550-54 (discussing bounded rationality problems in patient
interpretation of health care data); C. E. Schneider and M. A.
Hall, The Patient Life: Can Consumers Direct Health Care?
American Journal of Law & Medicine 35, no. 1 (2009): 7-66;
see also Wertheimer, supra note 29, at 77 (philosophical dis-
cussion of competency).
56. See, e.g., Korobkin, supra note 55, at 1229-1236; C. Jolls, C.
R. Sunstein, and R. Thaler, A Behavior Approach to Law and
Economics, Stanford Law Review 50, no. 5 (2008): 1471-1550;
Cohen, Protecting Patients with Passports, supra note 1, at
1467, 1493, 1509-1511, 1550-1554; Schneider and Hall, supra
note 55.
57. See, e.g., P. Menzel et al., The Role of Adaptation to Disability
and Disease in Health State Valuation: A Preliminary Norma-
tive Analysis, Social Science & Medicine 55, no. 12 (2002):
2149-2158.
58. C. R. Sunstein and R. H. Thaler, Libertarian Paternalism Is
Not an Oxymoron, University of Chicago Law Review 70, no.
4 (2003):1159-1202, at 1159, 1160; C. Jolls and C. R. Sunstein,
Debiasing through Law, Journal of Legal Studies 35, no. 1
(2006): 199-241, at 199, 200. See Cohen, Protecting Patients
with Passports, supra note 1, at 1506.
59. Working Group on Incentives for Living Organ Donation,
Incentives for Organ Donation: Proposed Standards for an
Internationally Acceptable System, American Journal of
Transplantation 12, no. 2 (2012): 306-312, at 306.
60. Id., at 308.
61. Id.
62. A. J. Ghods and S. Savaj, Iranian Model of Paid and Regu-
lated Living-Unrelated Kidney Donation, Clinical Journal of
the American Society of Nephrology 1, no. 6 (2008): 1136-1145,
at 1136, 1138.
63. See Zargooshi, supra note 8, at 1790-1799.
64. See, e.g., D. Boaz, Libertarianism: A Primer (New York: Free
Press, 1997): at 16-19; see Sunstein and Thaler, supra note 58,
at 1160.
65. A. T. Kronman, Paternalism and the Law of Contracts, Yale
Law Journal 92, no. 5 (1983): 763-798, at 763, 765.
66. A prohibition on transplant tourism might also be thought to
be justied on the ground that it seems unfair for us to prohibit
our citizens from buying organs from our citizens but allow
our citizens to buy from poor Indians, or Pakistanis, increasing
their exploitation. I have discussed a similar argument as to
surrogacy elsewhere, and pressed on whether a home countrys
obligation to prevent the exploitation by its citizens of its own
citizens is the same as the exploitation by its citizens of foreign
individuals. See Cohen, Circumvention Tourism, supra note 1.
67. See M. Smith et al., Organ Gangs Force Poor to Sell Kid-
neys for Desperate Israelis, Bloomberg Markets Magazine,
November 1, 2011, available at <http://www.bloomberg.com/
news/2011-11-01/organ-gangs-force-poor-to-sell-kidneys-
for-desperate-israelis.html> (last visited January 9, 2013); J.
Allain, Trafcking of Persons for the Removal of Organs and
global health and the law spring 2013 285
I. Glenn Cohen
the Admission of Guilt of a South African Hospital, Medical
Law Review 19 (Winter 2011): 117-122; S. Khoza, The Human
Organ Trade: The South African Tragedy, South African Jour-
nal of Bioethics 2, no. 2 (2009): 46-47, at 47; Turkish Author-
ities Arrest Two Suspected Organ Trafckers, Hurriyet Daily
News, January 21, 2011, available at <http://www.hurriyetdai-
lynews.com/default.aspx?pageid=438&n=two-people-related-
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68. See F. Ambagtsheer and W. Weimar, A Criminological Per-
spective: Why Prohibition of Organ Trade Is Not Efective and
How the Declaration of Istanbul Can Move Forward, Ameri-
can Journal of Transplantation 12, no. 3 (2012): 571-575, at
571-573.
69. L. P. Francis and J. G. Francis, Stateless Crimes, Legitimacy,
and International Criminal Law: The Case of Organ Trafck-
ing, Criminal Law & Philosophy 4, no. 3 (2010): 283-295,
at 283, 287; The Declaration of Istanbul on Organ Trafcking
and Transplant Tourism, Nephrology Dialysis Transplanta-
tion 23, no. 11 (2008): 3375-3380 (hereinafter Declaration of
Istanbul).
70. Id., at 3375-76.
71. Id., at 3376.
72. Id., at 3376.
73. Id., at 3377.
74. Id.
75. A. I. Reed et al., The Declaration of Istanbul: Review and
Commentary by the American Society of Transplant Surgeons
Ethics Committee and Executive Committee, American Jour-
nal of Transplantation 9, no. 11 (2009): 2466-2469, at 2466,
2467.
76. See Francis and Francis, supra note 69, at 286-287 (citing
World Health Organization, Guiding Principles on Human
Organ Transplantation, Lancet 337, no. 8755 (1991): 1470-
1471; World Health Assembly, WHA 57.18 (2004), available
at <http://apps.who.int/gb/ebwha/pdf_les/WHA57/A57_
R18-en.pdf> [last visited January 9, 2013]).
77. Id., at 287; United Nations, Protocol to Prevent, Suppress and
Punish Trafcking in Persons, Especially Women and Children,
Supplementing the United Nations Convention against Trans-
national Organized Crime (2000), available at <http://trea-
ties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_>
(last visited January 9, 2013).
78. See Francis and Francis, supra note 69, at 287; United Nations
Ofce on Drugs and Crime, Protocol status as of 26/09/2008,
available at <http://www.unodc.org/unodc/en/treaties/CTOC/
countrylist-trafckingprotocol.html> (last visited January 9,
2013). .
79. See Francis and Francis, supra note 69, at 287.
80. See id., at 291.
81. F. L. Delmonico, The Implications of Istanbul Declaration on
Organ Trafcking and Transplant Tourism, Current Opinion
Organ Transplant 14, no. 2 (2009): 116-119.
82. See Francis and Francis, supra note 69, at 289; Ambagtsheer
and Weimar, supra note 68, at 571, 573; L. Nol and D. Mar-
tin, Progress Towards Self-Sufciency in Organ Transplants,
Bulletin World Health Organization 87, no. 9 (2009): 647.
83. Francis and Francis have argued that the International Crimi-
nal Court or a specialized international tribunal should be
given jurisdiction to pursue organ trafcking specically. See
Francis and Francis, supra note 69, at 291. They reach this
suggestion because they conclude that domestic legal regimes
have proved inefective and there is little reason to believe
enforcement is likely to improve, and because the presence
of a credible international enforcement regime could prove
both a spur and a complement to the strengthening of domes-
tic enforcement regimes. Id., at 292. However, as they admit,
this would require a signicant expansion of the existing scope
of international criminal liability and cannot t within the
denitions of genocide and crimes against humanity set forth
in the Statute of Rome. Id., at 292-293. I think that interna-
tional criminal liability is worth considering, but I am both
more skeptical that it is politically feasible in the middle term
future than the Francises, and less skeptical of the possibil-
ity for efective home country enforcement mechanisms of the
kind I set out below.
84. 42 C.F.R. 482.102(b)(9) (2009).
85. J.S. Gill and M. Tonelli, Penny Wise, Pound Foolish? Coverage
Limits on Immunosuppression after Kidney Transplantation,
New England Journal Medicine 366, no. 7 (2012): 586-589, at
588.
86. See, e.g., A. K. Hoffman, Three Models of Health Insur-
ance: The Conceptual Pluralism of the Patient Protection and
Afordable Care Act, University of Pennsylvania Law Review
159, no. 6 (2012): 1577-1622.
87. For a discussion of how states can use this power of health
insurance to regulate medical tourism, see I.G. Cohen, Patients
with Passports, supra note 1, at 1467, 1544-1547. This would
be somewhat unusual in that most state coverage is aimed at
expanding not restricting the number of covered procedures,
but not unheard of. The federal government would also likely
have to alter the Emergency Medical Treatment and Active
Labor Act (EMTALA), 42 U.S.C. 1395dd(a)-(d), which
requires hospitals to either stabilize (give treatment as may
be required to stabilize the medical condition) or transfer
patients that show up in emergency rooms, to prevent patients
repeatedly showing up to the ER to get immunosuppressive
drugs they are not entitled to receive.
88. See Gill and Tonelli, supra note 85, at 588.
89. E.g., U.S. Sentencing Guidelines Manual 5E1.1, 1.4 (orders
of restitution and forfeiture for individuals).
90. F.L. Delmonico, The Hazards of Transplant Tourism, Clinical
Journal of the American Society of Nephrology 4, no. 2 (2009):
249-250, at 249.
91. See Gill and Tonelli, supra note 85, at 588; L. Rosen et al.,
Addressing the Shortage of Kidneys for Transplantation:
Purchase and Allocation through Chain Auctions, Journal of
Health Policy & Law 36, no. 4 (2011): 717-755, at 717, 718.
92. 42 U.S.C. 274e (2007); see I. G. Cohen, Can the Government
Ban Organ Sale? Recent Court Challenges and Future of U.S.
Law on Selling Human Organs and Other Tissue, American
Journal of Transplantation 12, no. 8 (2012): 1983-1987.
93. See Francis and Francis, supra note 69, at 288.
94. See Cohen, Circumvention Tourism, supra note 1.
95. See B. Furrow et al., Health Law (St. Paul, MN: West, 2d ed.
2000): at 155 (collecting statutes).
96. E.g., Ind. Code Ann. 35-47-7-1 (West 1998) (requiring report-
ing of injuries caused by rearms).
97. This is a theme that has been recognized in the Declaration
of Istanbul as those in the medical and policy communities.
See Declaration of Istanbul, supra note 69, at 3376-77; Nol
and Martin, supra note 82, at 647; Danovitch and Leichtman,
supra note 27, at 1134; see J. Lavee et al., A New Law for
Allocation of Donor Organs in Israel, Lancet 375, no. 9720
(2009): 1131-1133.
98. For a good recent review of these kinds of measures, see L.
Roels and A. Rahmel, The European Experience, European
Society for Organ Transplantation 24, no. 4 (2011): 350-367.