Rules and Regulations Implementing Section 4 (g) of Republic Act No. 9208

February 16, 2009

RULES AND REGULATIONS IMPLEMENTING SECTION 4 (g) OF REPUBLIC ACT NO. 9208, OTHERWISE KNOWN AS THE ANTI-TRAFFICKING IN PERSONS ACT OF 2003, IN RELATION TO SECTION 3 (a) OF THE SAME ACT, ON THE TRAFFICKING OF PERSONS FOR THE PURPOSE OF REMOVAL OR SALE OF ORGANS

Pursuant to the authority of the Inter-Agency Council Against Trafficking (IACAT) under Section 29 of Republic Act No. 9208 otherwise known as the "Anti-Trafficking in Persons Act of 2003", the following rules and regulations are hereby promulgated to implement section 4 (g) in relation to section 3 (a) of said Act:

ARTICLE I

General Provisions

SECTION 1. Rationale. — With the overwhelming demand for human organs, the potential abuse in sourcing them out has become a national and global concern. Recent reports have highlighted the likely abuse and exploitation of organ donors who are mostly poor. They become an easy and vulnerable prey of organ sale and trafficking. The sale and trafficking in human organs are illegal and has generated controversy that needs urgent attention and action.

SECTION 2. Objective. — These rules and regulations are hereby promulgated to fully protect the poor and the most vulnerable sector of our society from the growing commercial traffic in human organ, eliminate traffic in human organs and establish institutional mechanism for the support and protection of trafficked persons.

ARTICLE II

Definition of Terms

SECTION 3. Definition of Terms. — As used in these rules and regulations, unless the context otherwise requires, the following terms shall be understood to mean: TESICD

(a) Act — refers to Republic Act No. 9208, otherwise known as the "Anti-Trafficking in Persons Act of 2003".

(b) Council — refers to the Inter-Agency Council Against Trafficking (IACAT) created under Section 20 of the Act.

(c) Trafficking in Persons for the Sale or Removal of Organs — refers to the recruitment, transportation, transfer or harboring, or receipt of persons, with or without the victim's consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of removal or sale of organs.

The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of removal or sale of organs shall also be considered as "trafficking in persons" even if it does not involve any of the means set forth in the preceding paragraph.

(d) Child — refers to a person below eighteen (18) years of age or one who is over eighteen (18) but is unable to fully take care of or protect himself/herself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition.

(e) Donation — is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it.

(f) Sale — is one whereby a person, called the seller, obligates himself to deliver and to transfer ownership of a thing or right to another, called the buyer, for a price certain in money or its equivalent.

(g) Living Related Donors — refers to persons related to the recipient by blood up to the fourth degree of consanguinity.

(h) Living Non-Related Voluntary Donors — refers to persons not related to the recipient by blood but are willing to donate their organ by reason of emotional and social ties with the recipient.

(i) Non-Related Commercial Organ Provider — refers to persons not related to the recipient by blood who offer their organs for sale in contravention with the Act.

(j) Human organs — means any part of a human body consisting of a structured arrangement of tissues which, if wholly removed, cannot be replicated by the body.

(k) Valuable Consideration — the term "valuable consideration" does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ, medical insurance and periodic health monitoring, life insurance, and cost of medicines of the donor to attain full recovery. IcCEDA

ARTICLE III

Elements of Trafficking in Persons for the Removal or Sale of Organ

SECTION 4. How Committed. — trafficking in persons for the removal or sale of organs is committed as follows, with or without the victim's consent or knowledge, within or across national borders:

a)by acts of recruitment, transportation, transfer, harboring, or receipt of persons;

b)by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of a person, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person; and

c)the acts and means mentioned under the above paragraphs must link to achieving the exploitative purpose of removal or sale of organs.

SECTION 5. Child Trafficking. — The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of removal or sale of organs shall be considered as "trafficking in persons" even if it does not involve any of the means set forth in Section 4 of this Rule.

ARTICLE IV

Transplant/Donation of a Human Organ During the

Lifetime of the Donor

SECTION 6. Policies and Guidelines. — In consonance with the policy of the State to protect and promote the right to health of the people, the selling or buying of human organs is strictly prohibited. Nevertheless, the right for transplantation of human organs for therapeutic purposes shall not be hampered by this declaration, subject to the conditions set forth in this chapter.

Thus, to avoid exploitation or improper inducement to donate organs, every donation of human organs shall be guided by the rules as enshrined and guaranteed by the 1991 World Health Organization (WHO) Guiding Principles on Human Organ Transplantation. Specifically, those organs for transplantation should be removed preferably from the bodies of deceased persons. However, adult living persons may donate organs; but in general, such donors should be genetically related to the recipients. The human body and its parts cannot be the subject of commercial transactions. Accordingly, giving or receiving payment (including any other compensation or reward) for organs should be prohibited. Likewise, advertising the need for or availability of organs, with a view to offering or seeking payment, should be prohibited.

SECTION 7. Voluntary Donor. — Living related voluntary donor or living non-related voluntary donor may be allowed to donate organ in a manner set forth in the succeeding sections. Provided, however, that no living minor shall be allowed to donate any organ for the purpose of transplantation. DHcSIT

SECTION 8. Person Who May Execute Donation. — Any individual, at least eighteen (18) years of age, of sound mind, and understands the nature and consequences of transplanting organs from his or her body during his or her lifetime may donate, by way of written consent to the removal of organ specified in the consent, for the purpose of implanting the organ in another living human body.

SECTION 9. Persons Who May Become Donee-Recipient. — Any individual may become donee-recipient of a human organ of a living related voluntary donor or living non-related voluntary donor for the purpose of therapy based on the medical needs by him or her. Provided, however, that in case of non-related voluntary donor, a medical evaluation has been made showing that all other members of the immediate family of the donee-recipient have been eliminated, for medical or for other reasons, as potential donors. Provided further, that no alien may receive organs from Filipino living non-related donors.

In case both parties are aliens (donor-donee), a Certification from the Embassy/Consular office concerned, shall be secured to prove they are related by consanguinity and the voluntariness of the donation.

SECTION 10. Manner of Executing Donation. — Any donation by a person authorized under Section 8 hereof shall be sufficient if it is executed in public instrument specifying therein, among others, the (a) organ to be donated, (b) relationship of the donor to the donee, (c) family, social or emotional ties which the donor has with the donee, and (d) the donation is made without any valuable consideration, gratuity or any of its equivalent consideration.

The acceptance of the donee shall be made in a document prescribed by the Inter-Agency Council Against Trafficking.

SECTION 11. Effect of Donation/Consent. — A donation/consent that complies with this Rule is binding and is authority for a registered medical practitioner: (a) to make an examination necessary to assure medical acceptability of the organ specified in the donation/consent; and (b) to remove the organ as specified and in accordance with the donation/consent.

Notwithstanding the foregoing, no person shall act on a donation/consent if the person who gave the donation/consent subsequently withdrew or would have objected to the donation/consent.

SECTION 12. Reportorial Requirements. — The hospital administrator shall submit a monthly report on the transplantation performed to the Department of Health for monitoring and regulatory purposes. Failure to do so shall be a ground for an administrative proceeding, without prejudice to criminal liability under the Act, if evidence warrants.

The Department of Health shall submit a report to the Council every end of June and December of each year.

SECTION 13. Reporting of a Trafficking Incident. — The medical establishments, attending physician or medical practitioner who has any knowledge or learns of facts or circumstances that give rise to a reasonable belief that a person will be, or may be, or has been trafficked for the removal or sale of organ shall immediately report the same, either orally or in writing or through other means to any member of the Council, the nearest police or other law enforcement agency, or the local social welfare and development office. Failure to do so shall be a ground for an administrative proceeding, without prejudice to criminal liability under the Act, if evidence warrants. cDECIA

 

ARTICLE V

Role and Responsibility of the Department of Health

SECTION 14. Pre-Donation and Post-Donation Screening. — Promulgate the necessary rules in accordance with Chapter IV of this Rule to identify and approve acceptable donors, ensure the safety of both donors and recipients, and monitor organ donation and transplantation within health facilities and among health professionals.

SECTION 15. Screening Forms and Questionnaires. — Develop a complete and easy to understand forms and questionnaires to be filled out by the prospective or qualified donors, particularly specifying therein, among others, the willingness of the donor to donate organs even in the absence of valuable consideration to be received by him or her by reason of the donation.

SECTION 16. After Care Program for Donor. — Develop a comprehensive program for long term monitoring of donors after donation for the further care of donors who developed any medical problems after donation.

SECTION 17. Public Awareness. — Undertake activities to increase public awareness on organ donation and transplantation, and organ trafficking, which may include, but not limited to, medical practitioner, family and patient information and education, public education and advocacy campaign through multimedia, internet and other information technology.

SECTION 18. Coordination. — Work closely with the Council and other stakeholder institutions and organization for the effective implementation of the Act and this rule and render assistance in the investigation and prosecution of trafficking in persons cases.

SECTION 19. Rewards and Incentives. — Awards and recognition shall be given to persons, organizations, or establishments that champion or support activities which contribute to the prevention or suppression of trafficking in persons.

ARTICLE VI

Prosecution, Civil Forfeiture and Recovery of Civil Damages

SECTION 20. Who May File a Complaint. — Complaints for violations of the Act may be filed by the following: (a) any person who has personal knowledge of the commission of the offense; (b) the trafficked person or the offended party; (c) parents or legal guardians; (d) spouse; (e) siblings; (f) children or (g) any public officer or law enforcement officer charged with the enforcement of the law violated.

SECTION 21. Institution of Criminal and Civil Actions. — Pursuant to the Revised Rules on Criminal Procedure, when a criminal action is instituted, the civil action arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. cADSCT

SECTION 22. Exemption from Filing Fees. — When the trafficked person institutes a separate civil action for the recovery of civil damages, he/she shall be exempt from the payment of filing fees.

SECTION 23. Venue. — The offenses punishable under the Act shall be considered as a continuing offense and may be filed in the place where the offense was committed or where any of its elements occurred or where the trafficked person actually resides at the time of the commission of the offense. Provided, that the court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other courts.

ARTICLE VII

Legal Protection and Other Services

SECTION 24. Legal Protection. — Trafficked persons shall be recognized as victims of the act or acts of trafficking. As such, they shall not be penalized for crimes directly related to the acts of trafficking enumerated under the Act or in obedience to the order made by the trafficker in relation thereto. In this regard, the consent of the trafficked person to the removal or sale of organ shall be irrelevant.

SECTION 25. Preferential Entitlement under the Witness Protection Program. — Any provision of Republic Act No. 6981 to the contrary notwithstanding, any trafficked person shall be entitled to the witness protection program provided therein.

SECTION 26. Immunity from Criminal Prosecution. — Any person who has personal knowledge in the commission of any of the offenses penalized under the Act and who voluntarily gives material information relative thereto and willingly testifies against the offender shall be exempt from prosecution for the offense with reference to which his information and testimony were given, subject to the following conditions: (a) the information and testimony are necessary for the conviction of the accused; and (b) such information and testimony are not yet in the possession of the state.

SECTION 27. Mandatory Services. — To ensure recovery, rehabilitation and reintegration into the society, concerned government agencies shall make available the following services to trafficked persons: (a) emergency shelter or appropriate housing; (b) counselling; (c) free legal services which shall include information about the victims' rights and the procedure for filing complaints, claiming compensation and such other legal remedies available to them, in a language understood by the trafficked person; (d) medical or psychological services; (e) wage employment facilitation assistance, livelihood and skills training; and (f) educational assistance to a trafficked child.

SECTION 28. Incentive Scheme. — The Inter-Agency Council Against Trafficking (IACAT) shall institute an incentive scheme whereby monetary rewards may be given to persons who provide vital information that lead to the prevention or suppression of trafficking activities and to the apprehension of offenders involved therein. ACTIcS

ARTICLE VIII

Confidentiality

SECTION 29. Confidentiality. — At any stage of the investigation, prosecution and trial of an offense under this Act, law enforcement officers, prosecutors, judges, court personnel and medical practitioners, as well as parties to the case, shall recognize the right to privacy and right to confidentiality of information of the trafficked person and the accused. Towards this end, law enforcement officers, prosecutors and judges to whom the complaint has been referred may, whenever necessary to ensure a fair and impartial proceeding, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial. The name and personal circumstances of the trafficked person or of the accused, or any other information tending to establish their identities and such circumstances or information shall not be disclosed to the public.

In cases when the prosecution or trial is conducted behind closed doors, it shall be unlawful for any editor, publisher, reporter or columnist in case of printed materials, announcer or producer in case of television and radio, producer and director of a film in case of the movie industry, or any person utilizing tri-media or information technology to cause undue and sensationalized publicity of any case of violation of this Act which results in moral degradation and suffering of the offended party.

ARTICLE IX

Offenses and Penalties

SECTION 30. Trafficking in Persons for the Sale or Removal of Organs. — Any person, natural or juridical, who recruits, hires, adopts, transports or abducts a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person shall suffer the penalty of imprisonment of twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) but not more than Two million pesos (P2,000,000.00).

SECTION 31. Acts that Promote Trafficking in Persons. — Any person, natural or juridical, who shall commit the following acts which promote or facilitate trafficking in persons, shall be penalized with the penalty of imprisonment of fifteen (15) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00):

(a) To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons; and EHTIcD

(b) To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet or any brochure, flyer, or any propaganda material that promotes trafficking in persons.

SECTION 32. Qualified Trafficking in Persons. — The following are considered as qualified trafficking and shall be penalized with the penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) but not more than Five million pesos (P5,000,000.00):

(a) When the trafficked person is a child;

(b) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group;

(c) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee;

(d) When the offender is a member of the military or law enforcement agencies; and

(e) When by reason or on occasion of the act of trafficking in persons, the offended party dies, becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS).

SECTION 33. Violation of Confidentiality Provisions. — Any person who violates Section 7 of the Act and Section 27, Article VIII hereof shall suffer the penalty of imprisonment of six (6) years and a fine not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00).

SECTION 34. Application of Penalties and Other Sanctions. — The following shall be applied in the imposition of penalties:

 

(a) If the offender is a corporation, partnership, association, club, establishment or any juridical person, the penalty shall be imposed upon the owner, president, partner, manager, and/or any responsible officer who participated in the commission of the crime or who shall have knowingly permitted or failed to prevent its commission;

(b) The registration with the Securities and Exchange Commission (SEC) and license to operate of the erring agency, corporation, association, or establishment shall be cancelled and revoked permanently. The owner, president, partner or manager thereof shall not be allowed to operate similar establishment in a different name; HCacTI

(c) If the offender is a foreigner, he shall be immediately deported after serving his sentence and be barred permanently from entering the country;

ARTICLE X

Funding

SECTION 35. Inclusion in the Agency Appropriation. — The heads of department and agencies concerned shall immediately include in their annual appropriation the funding necessary to implement programs and services required under the Act and this Rule.

ARTICLE XI

Final Provisions

SECTION 36. Saving Clause. — The Rules and Regulations Implementing the Anti-Trafficking in Persons Act of 2003 shall remain applicable and shall not in any way be amended or repealed by these related rules and regulations.

SECTION 37. Separability Clause. — The declaration of invalidity of any provision of these rules and regulations or part thereof shall not affect the validity of the remaining provisions.

SECTION 38. Repealing Clause. — Pertinent provisions of all laws, presidential decrees, executive orders and rules and regulations, or parts thereof, contrary to or inconsistent with the provisions of the Act and these rules and regulations are hereby repealed or modified accordingly.

SECTION 39. Effectivity. — These rules and regulations shall take effect fifteen (15) days after its complete publication in at least two (2) newspapers of general circulation.

CONFORME:

 

(SGD.) HON. ESPERANZA I. CABRAL, MDSecretary, Department of Social Welfare and Development

 

(SGD.) HON. RAUL M. GONZALEZSecretary, Department of Justice

 

(SGD.) HON. FRANCISCO T. DUQUE III, MD. MScSecretary, Department of Health

 

(SGD.) HON. ALBERTO G. ROMULOSecretary, Department of Foreign Affairs

 

(SGD.) HON. MARIANITO D. ROQUESecretary, Department of Labor and Employment

 

(SGD.) HON. RONALDO V. PUNOSecretary, Department of Interior and Local Government

 

(SGD.) ATTY. JENNIFER MANALILIAdministrator, Philippine Overseas Employment Administration

 

(SGD.) COM. MARCELINO C. LIBANANCommissioner, Bureau of Immigration

 

(SGD.) DIR. JESUS AME VERSOZADirector General, Philippine National Police

 

(SGD.) DIR. NESTOR M. MANTARINGDirector, National Bureau of Investigation

 

(SGD.) DIR. ROLANDO C. GARCIAExecutive Director, Philippine Center on Transnational Crime

 

(SGD.) MS. MYRNA T. YAOChairperson, National Commission on the Role of Filipino Women

 

(SGD.) MS. AMIHAN V. ABUEVAChairperson, ECPAT-Philippines

 

(SGD.) MS. JEAN ENRIQUEZExecutive Director,

 

(SGD.) MS. ISIDRO ALIGADARepresentative, OFW Sector