Trafficking in human beings for the purpose of the removal of organs and forced commercial surrogacy (2012)

Organ removal

There are no indications of a high incidence of trafficking in human beings for the removal of organs (sometimes referred to as ‘organ harvesting’) within the Netherlands. Neither do Dutch citizens appear to be involved in this crime abroad often. Nevertheless, the Rapporteur calls for watchfulness: "Considering the continuous severe shortage of organ donors, growing globalisation and interconnectedness as a result of the Internet, we have to be on the alert. Manifestations of trafficking in human beings we are witnessing in other countries, will sooner or later affect us too. For that we have to be prepared.” The Rapporteur has called on the Ministry of Health, Welfare and Sport to take the lead in recording the scale and nature of organ trafficking and organ tourism.

The Netherlands are experiencing a shortage of organ donors. Live organ donations are rare, and must be voluntary and non-commercial. Because of the severe shortage of organs, patients seem to be willing to pay for them. There are calls from various quarters for financial incentives for organ donation. A number of points need to be considered in this context. Financial incentives could alleviate the shortage of organs and, hence the chance of human trafficking for the purpose of the removal of organs. However, financial incentives for organ donation would also make organ donation a commercial activity and create a market for organs, which would, in itself, carry the risk of human trafficking for the purpose of the removal of organs. That risk could be avoided by offering donors an exemption from health insurance premiums rather than a direct monetary reward.

Trafficking in organs and human trafficking for the purpose of the removal of organs are not constrained by national borders. It is important for states to try to reach new joint solutions and, where possible, coordinate policies and strategies with respect to organ donation, trafficking in organs and human trafficking for the purpose of the removal of organs.

Forced commercial surrogacy

In addition to the trade in these ‘classical organs’, a market is also growing for other parts of the body. One such market is the demand for surrogate mothers. Commercial surrogacy is increasingly common, partly as a result of developments like the Internet, the globalisation of society and advances in procreation techniques. For the first time Dutch National Rapporteur Corinne Dettmeijer studied the relationship between forced commercial surrogacy and trafficking in human beings. Forced surrogacy is not explicitly included in the Dutch Criminal Code as a form of trafficking. It can be argued that, under certain circumstances, surrogacy could constitute exploitation in the sense of forced services. An important indication of exploitation would be if other persons than the woman carrying the child, such as an intermediary or a spouse, earn money out of the surrogacy and if the financial risks and health risks are borne entirely or largely by the surrogate mother.

The Netherlands have strict laws about surrogacy. Commercial surrogacy (receiving payment for carrying someone else’s child) is not allowed. National policy is aimed at preventing the spread of commercial surrogacy, and accordingly, behaviour that promotes supply and demand in relation to surrogacy has been made a criminal offence. Surrogacy itself is not a criminal offence. In some other countries, such as the United States, India and Ukraine, commercial surrogacy is allowed.

Intermediary companies operate in the international ‘baby market’, bringing together donors, parents, surrogate mothers and fertility clinics and making the legal arrangements. The internet, globalisation and advances in procreation techniques bring services abroad within reach of Dutch couples who wish to become parents through surrogacy. But there is a risk there: the rights of surrogate mothers are not respected in all countries. When it comes to commercial surrogacy, the question is to what extent the surrogate mothers are acting voluntarily. As with trafficking in organs, social determinants such as poverty, debt, a vulnerable social position and illiteracy can force a woman to become a surrogate mother. “No one wants to contribute to the phenomenon that women are being exploited to have children. The Dutch government should inform prospective parents about this risk," says the Dutch National Rapporteur.