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Joint Standing Committee on Foreign Affairs, Defence and Trade
08/06/2018
Human organ trafficking and organ transplant tourism

ANTONIO, Dr Maria Soledad, Private capacity

SARMIENTO, Dr Francisco III, Program Manager, Philippine Organ Donation and Transplantation Program, Philippine Network for Organ Sharing, Department of Health (Philippines)

Evidence was taken via teleconference—

CHAIR: Dr Antonio, do you have any comment about the capacity in which you appear?

Dr Antonio : I am a medical doctor from the Philippines, a practising public health specialist for 10 years and a PhD candidate at Griffith University, Brisbane, Australia, whose research topic is the international trade in health services in the Philippines, and one of my thesis chapters is on the organ trade.

CHAIR: Would you like to make some opening comments?

Dr Antonio : As background, in the submission I made in August 2017, I would say that the global landscape of organ trafficking is changing, and international and national legal systems need to be revisited to keep pace with the changing situation. This is a timely call by the Australian parliament to protect their own citizens from the global organ trafficking landscape.

Though the Australian Criminal Code criminalises unlawful removal of organs and domestic trafficking of persons for organ trade, the Australian Criminal Code could not prosecute organ trafficking perpetrators if there is a movement outside of Australia. There are six stakeholders involved in the organ trade: the organ recipient, the organ donor, the medical specialists, the hospital administrators, the recruiters and the medical insurers.

Where is Australia in the global landscape of organ trafficking? I have a diagram and I hope it is distributed to the members of the panel. Australia is one of the developed countries importing organs where Australians are the organ recipients from the global market. Australians will go outside for the following probable reasons. One reason is the Australian Organ and Transplant Authority makes a phenomenal effort to give the supply in Australia but organ supply is still inadequate compared to the increasing demand within Australia. Another reason is Australian patients could afford expenses abroad for transplant surgery and compensation for foreign organ donors. It is a matter of life and death for Australian recipients, who become desperate and very vulnerable, to wait for an organ donor from the Australian organ donation and transplant system. There could be organ recruiters or brokers from abroad who, through social media, could likely attract the desperate Australian patients. It is illegal in Australia to have a commercial organ donation and transplant within the country. These are probable reasons why Australians go out of Australia for transplants.

In relation to the terms of reference of this parliamentary inquiry, specifically on the extraterritorial application to the Australian Criminal Code, putting an extraterritorial provision may be beneficial in order to adapt to the to the changing global landscape of organ trafficking and its perpetrators. Organ donors, recipients, recruiters and transplant hospitals may come from different countries. International networks, and multidisciplinary cooperation from law enforcers and health professionals, are needed if extraterritorial provisions are to be included—not only in the Australian Criminal Code but also in the legal systems of other countries.

The next question I would put on the floor is: if there will be an extraterritorial provision in the Australian Criminal Code will you consider an Australian organ recipient a perpetrator or a victim? Australians who decide to buy an organ abroad may be so desperate and vulnerable for a transplant, and could no longer bear the waiting time on dialysis. Australian patients returning from transplantation abroad may suffer from post-operative complications and their survival may be compromised. Australian recipients who travel abroad for transplants may have been knowingly, or unknowingly, involved as recipients of organs that come from trafficked organ donor victims. The Australian organ recipients maybe victims of the system that probably fell short in meeting their need to live with dignity and satisfaction of an organ transplant within Australia.

My argument here is for extraterritorial provisions for the non-criminalisation of victims—victims will not be criminalised, including if you consider as victims Australian organ recipients who travelled abroad for organ transplant. It is necessary to encourage them to approach authorities and report trafficking incidents. They could be an ally if we consider them as victims so that perpetrators on the other side of the globe could be prosecuted or criminalised at the other end.

In relation to the second term of reference, which is the 2014 Council of Europe convention, trafficking in organs and trafficking in persons for organ removal are two different crimes. In trafficking in organs the object of the crime is the organ whereas in human trafficking for organ removal the object of the crime is the person. I suggest that these incidents be clarified in the Australian Criminal Code because this confusion could hinder Australian efforts to tackle both incidents.

Legislative measures are important, but they are not sufficient to solve everything. Non-legislative measures are also essential like prevention of organ trafficking and like a massive education campaign on the pitfalls of transplants aboard. Healthy lifestyle advocacy will decrease the demand for organ transplants. Victim protection and assistance are also needed as non-legislative measures to help trafficked victims. I think that's all I can say at the moment with regard to the terms of reference. I would be delighted to give clarification if there are questions from the floor.

CHAIR: Thank you, Dr Antonio. I believe Dr Sarmiento is on the line as well. Can you hear me? It looks like we've lost him, so we will come back to you, Dr Antonio. Thank you for your comments. Do you have any sense of the incidence of organ transplant tourism, if I can call it that, involving the Philippines? Earlier today one of the medical experts suggested that from Australia's perspective the three most significant countries are China, India and the Philippines. I was wondering what your sense or observation is from the Philippines.

Dr Antonio : From 2000 to 2008 transplants in foreigners who bought organs from Filipinos were rampant. That was controlled or stopped when our regulations became coherent with the Istanbul declaration and the WHO principles. But from 2016 to 2017 there was a change in organ trafficking that happened in the Philippines. The brokers were from Turkey, the recipients were mostly from the Middle East and the commercial donors were from Eastern Europe. All of them are being transplanted in the Philippines. But there's no reported Australian involvement.

CHAIR: So this was an international arrangement which happened to take place in the Philippines.

Dr Antonio : Yes.

CHAIR: Using surgeons in the Philippines.

Dr Antonio : Yes, in hospitals in the Philippines.

CHAIR: There's some suggestion that Australians of Filipino heritage have gone back to the Philippines for transplants. Do you have any observations about that?

Dr Antonio : I only know up to the 2015 registry. There were none reported Australian. My colleague, Dr Sarmiento, would probably know the latest data for Australia.

CHAIR: Whilst we're trying to make contact with Dr Antonio, what more do you think Australia could do in this regard? We understand what you said about criminalisation. For example, do you think it would be useful for countries like Australia to ratify the European convention?

Dr Antonio : It would be beneficial not only for Australia but also for other countries to do it. We could coordinate, collaborate, on the extraterritorial jurisdiction so that we could prosecute even though it's outside our jurisdiction.

CHAIR: So you think it would be useful for Australia and other countries to ratify the European instrument?

Dr Antonio : Yes. With regard to your question about Australian citizens, I will be asking Dr Sarmiento and other colleagues about this and will give the data to you as soon as possible. I could give it to the secretariat.

CHAIR: Thank you very much, Dr Antonio; that would be very useful. Thank you for your submission, and thank you for your comments today. It's quite helpful for us, in terms of our inquiry. We appreciate you coming online.

Dr Antonio : It's my pleasure.

Teleconference interrupted—

CHAIR: Dr Sarmiento, can you hear me?

Dr Sarmiento : Yes. Good afternoon from the Philippines.

CHAIR: Good afternoon. We've had trouble making contact, Doctor. Thank you for making yourself available. We've been looking into Australia's involvement in transplantation occurring overseas and trade in organs and people et cetera. We are interested in the perspective from the Philippines to the extent that this might be happening involving Australians.

Dr Sarmiento : As far as Australians are concerned, we have no documented involvement of Australians in whatever organ trafficking cases have been reported to the Philippines as of yet.

CHAIR: What is the extent of the activity in the Philippines? Today, some of our medical experts suggested that the Philippines was one of the more significant countries in the world in which this was occurring.

Dr Sarmiento : Yes, we do acknowledge that fact way back in the late nineties up to the mid-2000s. However, as an urgent response of the government of the Philippines, the Department of Health has issued official statements and policies banning aliens or foreigners from receiving living, non-related donations from Filipinos. So, from 2008 onwards, there's been a ban on foreigners or aliens or non-Filipinos receiving living, non-related organs from Filipinos. Towards the year 2010, this particular policy was codified into law under the Expanded Anti-Trafficking in Persons Act under Philippine legislation.

CHAIR: One of the suggestions made to us is that we should ratify the European treaty. Do you have any views about that?

Dr Sarmiento : We always pursue cooperation and collaboration with our neighbours within the ASEAN region and also, if possible, cooperation with other regions in the world because we recognise organ trafficking is not just as a local problem but also, as we all know, really a global issue. It is a significant dimension of human trafficking as a whole.

CHAIR: Other suggestions included extending our laws to have an extraterritorial aspect in precluding Australians from being involved. Do you have any observations about that?

Dr Sarmiento : The Philippines would welcome the participation of Australia in our efforts in stopping organ trafficking or preventing organ trafficking from prospering, especially, as we have mentioned, as the Philippines remains significant as one of the countries that has been labelled by the international community as one of the hot spots for organ trafficking. We would welcome cooperation from Australia.

CHAIR: From your experience in your position, to what extent is there cooperation in terms of data collection between our two countries?

Dr Sarmiento : At present, we are still working on mechanisms with the Department of Justice because the law has enabled the formation of the Inter-Agency Council Against Trafficking. It was only recently that the dimension of organ trafficking started getting attention, because the focus is more on women and child trafficking. But in recognising the significant impact of organ trafficking, especially in health care and also in exploitation of the marginalised and the poor section of society, we really have to step up efforts in our collaboration not only nationally but also extraterritorially.

Dr Sarmiento : You mentioned earlier that Filipino law had changed. But that related to people who were not related to each other, as I understood what you said. Obviously it's quite legitimate in many places for people to donate organs to someone who is related to them—for example, kidneys. This is not uncommon. What is the incidence of that in the Philippines?

Dr Sarmiento : What we have documented is from way back in 2008, but there has been a drastic decrease since the issuance of a total ban in 2008. However, we have recently received a report from the Supreme Court of Israel regarding a particular case involving both alien donors and recipients having been brought to the Philippines and the transplant been done in the Philippines. The Department of Health, for its part, formed a fact-finding committee upon receipt of that report from the Supreme Court of Israel and, at present, we are ready to transmit the findings of the fact-finding committee to the Department of Justice as our legal obligation with regard to the said law against human trafficking, with a special emphasis on organ trafficking.

CHAIR: So this is a court case in Israel in which the Israeli court is seeking evidence from authorities in the Philippines?

Dr Sarmiento : Yes.

CHAIR: Thank you very much. I'm sorry about the difficulty of making contact, but I'm glad that we've been able to do so. It's been very helpful to us, and we appreciate you participating this afternoon. Thank you.

Dr Sarmiento : Thank you. On behalf of the Department of Health, we would like to extend our gratitude to the Australian parliament in engaging us to contribute and participate in this ongoing endeavour. We extend our best wishes for the success of this undertaking. Thank you very much.

CHAIR: Thank you, Doctor, and best wishes to you.