Organ trafficking

As a Party to the Trafficking in Persons Protocol, Australia’s compliance with the provisions criminalising organ trafficking rests upon implementation of anti-trafficking legislation.  The Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 (Cth) introduced Division 271 into the Criminal Code (Cth) which sets out offences for trafficking in persons, of which trafficking for the purpose of organ removal is one form.

Up until 2013, the offences in ss 271.2(1B), 271.2 (1C), and 271.5(2) of the Criminal Code (Cth) criminalised situations in which a person is brought from overseas into Australia, is taken from Australia into another country, or transported within Australia and the offender is reckless as to whether the victim may be exploited by way of unlawful organ removal.  Offences in ss 271.2(2), 271.2(2A), and 271.5(2A) criminalised situations in which a victim is tricked or otherwise deceived into a situation that may result in him/her being brought into Australia, taken out of Australia, or moved within the country for the purpose of organ removal.  The transnational trafficking offences under ss 271.2(1B), (1C), (2), and (2A) become ‘aggravated offences of trafficking in persons’ under s 271.3(1)(a) of the Criminal Code (Cth) if it can be shown that the accused committed the offence with the intention to exploit the victim after the victim entered into or exited from Australia.  Section 271.6 creates identical aggravations for domestic trafficking in persons.

In March 2013, the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) introduced a new Subdivision BA entitled ‘organ trafficking’ into Division 271 of the Criminal Code (Cth), which fundamentally changed the criminal offences relating to trafficking in persons for the purpose of organ removal.  The new title of Subdivision BA is misleading as the provisions under new ss 271.7A–271.7E technically do not—as the title suggests—capture the trafficking of organs, but, in line with the Trafficking in Persons Protocol, apply to trafficking in persons for the purpose of organ removal.  In short, as with other forms of trafficking, it is the person who is trafficked that is the object of the offence, not the separated organ, which is technically and legally distinct.

The new offences follow a similar template as the existing offences relating to trafficking in persons in Division 271, Subdivision B of the Criminal Code (Cth).  New ss 271.7B and 271.7C concern transnational trafficking for the purpose of organ removal.  New s 271.7B criminalises situations in which the accused organises or facilitates the entry or proposed entry, receipt, exit or proposed entry, ‘being reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person’ after or in the course of that entry, receipt or exit.  The new offence carries a penalty of 12 years imprisonment.  New s 271.7C provides an aggravated offence for cases involving minors, cruel, inhuman or degrading treatment, or conduct that gives rise to a danger of death or serious harm to the victim or another person. Domestic trafficking in persons for the purpose of organ removal, including identical aggravations, is criminalised under new ss 271.7D and 271.E of the Criminal Code (Cth).

Relative to other forms of trafficking in persons, trafficking for the purpose of organ removal has not been in the spotlight and official and academic sources concede that this issue has not been adequately explored.  There is little evidence to suggest that such trafficking is occurring in Australia on a wider scale.  Given the very significant shortage of donor organs in Australia it is perhaps surprising that allegations of trafficking for the purpose of organ removal do not surface more frequently.  This may, however, be offset by Australians in need for donor organs travelling overseas to obtain them.  A study presented in 2007 suggests that annually at least 20 Australian nationals travel abroad as transplant tourists for trafficked organs.[1]

The first case in which charges relating to trafficking in persons for the purpose of organ removal were considered was reported in the Australia media on 28 July  2011:

[A]n elderly Sydney woman suffering from a kidney condition is suspected to have trafficked a younger woman from the Philippines with the intention of harvesting an organ.  The deal was allegedly made without the woman’s full consent, and discovered during interviews at a Sydney Hospital.  A police spokesman indicated that ‘this is the first organ trafficking case investigated by the Australian Federal Police’.[2]

The case came to light when the donor changed her mind about the organ removal during medical transplant integrity procedures.  The organ donor was then referred to a social worker who learned about the true circumstances of the case and alerted the AFP.[3]  The Filipina donor agreed to the transplant in return for payment, though newspaper reports suggest that ‘the deal was allegedly made without the younger woman’s full consent’.[4]  At the time of the investigation, it was anticipated that the Australian recipient in this case would be charged with a trafficking offence.  In March 2012, her health deteriorated and she subsequently died of kidney failure.[5]

In the absence of more reliable information, this case must be seen as unique and, perhaps, isolated.  A report published in 2009 (i.e. prior to the 2011 investigation) noted: ‘To date, there have not been any victims of organ trafficking identified in Australia, nor have there been charges laid against Australians for being the recipient of a trafficked organ’.[6]  The circumstances and patterns of this case, however, confirm predictions made in 1998 that ‘[b]y far the greatest area of risk [for illegality] relates to transplantation involving foreign donors and recipients who may enter into financial arrangements prior to entering Australia.’[7]