Human and organ trafficking in Brazil: state responsibilities and legal challenges in light of the Constitution and international agreements Patricia Gorisch, Lucy Souza Faccioli

Abstract

Background: This article investigates the responsibilities of the Brazilian State regarding human and organ trafficking, considering the Federal Constitution, national legislation, the Declaration of Istanbul and the Palermo Protocol. Problem: The ineffectiveness of Law No. 9,434/97, Article 199 §4º of the Federal Constitution and Article No. 211 of the Brazilian Penal Code are highlighted, despite the repression of the authorities. The effectiveness of the mechanisms used is questioned. Objectives: To investigate the role of the National Transplant System in the management of donated organs, identifying failures and irregularities. To evaluate the application of the Palermo Protocol, ratified by Brazil in 2004, in combating human trafficking for organ removal. Methods: A comprehensive literature review was used based on Pubmed, Psycinfo and Google Scholar. Studies were selected focusing on domestic and foreign legislation on human trafficking, with an emphasis on organ trafficking. Results: The ineffectiveness of Law No. 9,434/97 is evidenced, highlighting flaws in the National Transplant System, under the responsibility of the Ministry of Health. The legislative application has proven ineffective in view of the unsatisfactory performance. Conclusions: The conclusion is that the Palermo Protocol is not effective in combating human trafficking for organ removal. The central problem is the responsibility of the Brazilian State. Reflections include the approach of the research in light of the legislation, international standards, violated principles and fundamental rights, and the need for a balance between international and national legislation.