THE CRIME OF ORGAN TRAFFICKING IN NATIONAL AND INTERNATIONAL CONTEXTS

Organ trafficking, a global public health issue, stems from insufficient organ donations and income inequality. Patients facing life-threatening conditions due to organ failure, unable to find suitable donors, seek organs in exchange for monetary compensation. They exploit the dire circumstances of indebted individuals willing to donate their organs for financial reasons. In some cases, organ donations occur unlawfully, without the foundational legal requirements, often compromising individuals’ consent. Both scenarios reduce the human body to an object, undermining fundamental values protected by law, such as human dignity and the freedom of will. This article aims to examine organ trafficking from both criminological and criminal law perspectives, enlightening readers on how the crime is perpetrated internationally and nationally. By analyzing international and national regulations introduced to combat organ trafficking, it seeks to identify commonalities and differences, highlighting areas for improvement in Turkish legislation. In this context, the provisions related to organ trafficking in the Council of Europe’s Convention against Trafficking in Human Organs and the Istanbul Declaration are scrutinized in detail, comparing their similarities and differences with the organ trafficking offense in the Turkish Penal Code. Additionally, the article outlines the differences between the methods of committing organ trafficking in other countries and in Turkey.

Unlike previous studies on organ trafficking in Turkish law, this article does not examine the elements and specific forms of the crime in a categorical and abstract manner. Instead, it focuses on the scope of acts constituting the offense and their manifestation in concrete cases, aiming to inform readers about their function in combating organ trafficking.

The research article has drawn many conclusions while analyzing international and national aspect of the crime of organ trafficking. For one thing, the punishment of advertisements or announcements aimed at organ trafficking serves a significant function in preventing organ trade before any agreements are made. Both the Council of Europe Convention against Trafficking in Human Organs and our penal code criminalize this act. Turkish law enforcement agencies frequently refer to the aforementioned provision to prevent organ trafficking before any danger of concrete harm arise.

Second, organized organ trafficking, particularly occurring in foreign countries mentioned in the first section, also appears in Turkey on a smaller scale (without organ mafia). Unlike the underdeveloped countries referenced in this article, cases of organ transplantation performed in illegal “backdoor” facilities are not observed in Turkey. Organizations established for the purpose of organ trafficking are typically small-scale groups that identify patients who have lost hope at dialysis centers, arranging organs through other accomplices and utilizing the legal transplantation system with forged documents and statements.

Third, in the Turkish doctrine, the existence of a specific obligation requiring personal immunity from punishment or a reduction in punishment for organ sellers has been criticized on the grounds that it harms the fight against organ trafficking. However, we believe that this provision is justified. In our view, effective combat against criminality cannot be achieved without investigating the root causes of the crime, nor can justice be served. Punishing an individual who is in a dire financial situation and decides to sell their organ would further victimize them. The primary aim of someone selling their organ is not to commit a crime but to settle debts, indicating a weak will to contravene the law. Therefore, we believe the law should reward this behavior. Instead of intensifying penalties to prevent trafficking, the state should seek solutions to organ shortages and elevate the living standards of economically disadvantaged potential donors. Criminal law will not be effective unless supported by social and economic measures, for individuals commit crimes also due to social conditions.

Fourth, in organ trafficking, the main malicious actor is the intermediary who seeks to profit from the dire situations of both the organ donor and recipient. Therefore, in our view, they deserve harsher penalties than the organ seller and buyer.

Fifth, in the Turkish system, the crime of organ trafficking is perpetrated by both Turks and the foreigners coming to the country for treatment as part of health tourism, who falsely present themselves as relatives or emotionally close (friends, etc.) to each other to obtain approval from the Ethics Committee. Therefore, our law grants the Ministry of Health the authority to regulate that individuals from the high-risk countries suspected of organ trafficking may only undergo organ transplantation with the decision of the Ethics Committee, even if a familial relationship exists.

Finally, the Ethics Committee review is not merely a procedural step; it is a critical phase in detecting organ trafficking and preventing illegal transplants. Awareness should be raised in this regard, and committee members should not provide a favorable opinion on transplantation without being satisfied about the existence of close ties or (for some nationalities) familial relationships between the parties.