The Fragile Legality of Ayahuasca

Image credit: Michael Divine

Sadly, after nearly 17 years of hard-won religious protection, ayahuasca is now illegal in the Netherlands.

Ayahuasca has a turbulent legal history; and nowhere has this been more true than in the Netherlands in the past few years. The latest legal struggles surrounding ayahuasca in the Netherlands have serious implications for ayahuasca practitioners in Europe and worldwide. It’s important for ayahuasca facilitators and enthusiasts to pay attention to these warning signs, in order to protect the fragile freedom that ayahuasca users currently have.

According to the United Nations, Nature is Not Illegal

The 1971 United Nations Convention on Psychotropic Substances (CPS), a treaty designed to control the trafficking of psychoactive drugs such as amphetamine-type stimulants, barbiturates, benzodiazepines, and psychedelics, lists DMT as dangerous. As of 2013, 183 member states are Parties to the treaty, which forms the cornerstone of the global drug control regime.

However, the CPS never meant to make plants or organisms illegal, because so many plants contain naturally occurring DMT; for this reason the CPS does not specify plant materials or preparations that contain DMT, just the molecule itself. Therefore countries that wish to prohibit ayahuasca have had to make specific legislation to declare it illegal.

Because plants that naturally contain DMT are not prohibited by the CPS, the INCB (International Narcotics Control Board) allows for the commerce of such plants, including ayahuasca. In 2001, the INCB informed the Dutch authorities that because ayahuasca is not included in the CPS, it can be freely traded.

In the words of the INCB that: “preparations (e.g.) decoctions made of these plants, including Ayahuasca are not under international control and, therefore, not subject to any of the articles of the 1971 Convention.”

In 2002, the Santo Daime church won the right to use ayahuasca as a legal sacrament, protected under the European Convention on Human Rights. This hard-won religious protection held for 17 years until February 28th 2018, when this decision was overturned by the Dutch High Court.

How Ayahuasca Became Illegal in the Netherlands

The prohibition of ayahuasca has followed a similar pattern worldwide. Prosecutors try to prove that since ayahuasca contains the substance DMT – considered highly dangerous in the 1971 UN Convention on Psychotropic Substances (CPS) – ayahuasca is also illegal by extension.

A document issued by Adele van der Plas, Lawyer and defender of the Santo Daime Church establishes the history of the Dutch High Court’s perspective on natural and plant based psychedelics, and outlines what types of activities are legal, grey, and illegal with regards to the sale and use of ayahuasca:

“Dutch judges have never wanted to follow the explanation of the INCB. In the famous Paddo-Judgment of 2002, the High Court of justice decided that any processed fresh hallucinogen mushrooms makes them illegal in regard to the Opium laws and CPS…

In the Netherlands, this judgment, since then, is seen as regular case law for all products that naturally contain a psychotropic substance. This means that Ayahuasca, being a tea that is actively processed from plants that naturally contain DMT, is ruled to be illegal by Dutch law, and called hard drug. This explanation does not conform with the CPS or the INCB.

Despite this law and courts’ decisions, the Santo Daime churches were allowed to legally import and use Ayahuasca the past 17 years for their services, because of article 9 of the ECHR. Every other use, however, has been illegal since 2002.” – Adele van der Plas (Lawyer and defender of the Santo Daime Church)

Increased Use of Ayahuasca Triggers Concern of the INCB

Ayahuasca ceremonies have been a regular occurrence in the Netherlands, in spite of the fact that any other use outside of the Santo Daime church was technically considered to be illegal by the Dutch High Court. Most ceremonies were kept underground to protect the privacy and safety of the participants. Even though most organizers didn’t fully understand that their activities were technically illegal, they felt their basic rights were protected.

Over the years, however, more ayahuasca providers in the Netherlands, began taking advantage of this legal grey area, and increasingly marketing ceremonies and retreats online. Hundreds of non-religious ayahuasca groups order plant materials online and in bulk, to process into tea offered to ceremony participants.

In recent years, the INCB has warned about this development. It expresses its worries about the rapid growth of unofficial Ayahuasca use, even though the tea is not under the control of the CPS. The fact that there is a lack of clarity about the legal status of Ayahuasca: “is exploited by drug trafficking networks and online retailers, resulting in increased trade, use and abuse of these plant materials in many countries.” – Adele van der Plas (Lawyer and defender of the Santo Daime Church)

In its 2012 report, the INCB advises individual countries, including the Netherlands, to act against this development. A few years later, Dutch authorities act on this advisory.

The Dutch High Court Revokes Religious Protection

In 2018, ayahuasca was legally declared to be the same thing as DMT by the Dutch government (the court case can be found here in Dutch). In this case, although the government agreed that Santo Daime required ayahuasca to practice their religion they decided that the prohibited status of DMT negated their religious freedoms.

Following the 2018 court case, ayahuasca has been pushed further underground in the Netherlands as ceremonies know they can now be prosecuted. An appeal in the Dutch Supreme Court has also failed, with the court doubling down on the initial ruling, effectively making ayahuasca illegal in the Netherlands (the initial response to the appeal can be found here, in a mixture of Dutch and English).

Ultimately, although the courts admitted that Santo Daime members needed ayahuasca to practice their religion, they decided that the need for “public safety” outweighed religious freedoms and rights. This is deeply concerning to many ayahuasca practitioners and religions. Charlotte Walsh, a legal expert who works with the Ayahuasca Defense Fund, has spoken out about the failings of this ruling:

“This decision is concerning because it isn’t rooted in an assessment of the relevant scientific literature, but, rather, public safety is assumed to be under threat by virtue of the fact that DMT is contained within prohibitive drug legislation, making the mistake of conflating DMT and ayahuasca, along with operating on the erroneous assumption that drug prohibition is itself based on a scientific assessment of harm. Human rights protections ought to be taken seriously: if the court is adopting this position, they need to substantiate it with hard evidence that the use of ayahuasca in the controlled environment of a church setting produces a public health risk – something they would find very difficult to do, as it doesn’t; indeed, quite the converse.” – Charlotte Walsh (legal advisor at the Ayahuasca Defense Fund)

In other words, the court failed to explain why ayahuasca posed a public threat; furthermore, the court maintained that they didn’t need to because “DMT is already illegal.”

Constanza Sánchez, the program director of the Ayahuasca Defense Fund, has also criticized the court:

“This decision implies a limitation of the right for religious groups who use ayahuasca as a sacrament while practicing their creed – and this limitation of their religious right in the name of protecting public health is based on the argument that ayahuasca use in private, controlled and sacramental spaces endangers society. This limitation of rights and freedoms is not justified given that there is sufficient scientific evidence that concludes that ayahuasca, in safe and controlled contexts, does not entail such a risk.” – Constanza Sánchez (program director at the Ayahuasca Defense Fund)

According to Sanchez, any removal of religious freedoms must be for good reason – and the court did not provide evidence that ayahuasca consumption in private, controlled, sacramental settings was indeed a danger to society.

Ayahuasca Raids and Deaths in the Netherlands

In the Netherlands, the recent spotlight on ayahuasca has led to a high-profile police raid on a ceremony run by Ayahuasca International. The Ayahuasca International organization has met criticism from various parts of the community; its founder has been accused of sexual misconduct, and of engaging in unsafe ayahuasca practices.

Over the years, Ayahuasca International’s aggressive marketing tactics, including promotion of multi-psychedelic retreats all over Europe, as well as in Latin America, has been viewed as problematic by advocates for drug policy reform, as well as by other critics. The organization, which rebranded as Inner Mastery, operates at least 50 Facebook pages with over 600,000 followers, hosts retreats and workshops in over 30 countries, offering more than 10 substances, and regularly runs paid Facebook ads marketing mind-blowing psychedelic retreats to the general public.

Ayahuasca International Gets Raided

In this case, Ayahuasca International had an ayahuasca ceremony raided due to the death of a Hungarian man who had been given iboga at one of their previous ceremonies. The man reportedly committed suicide after being given iboga, and there is no evidence that ayahuasca was involved. Even though his death was likely unrelated to ayahuasca, the event gave authorities enough reason to raid an ayahuasca ceremony organized by the same company. Details of the resultant raid can be found here in Dutch.

At the iboga ceremony, the man left before it was safe for him to do so. Clinical guidelines from the Global Ibogaine Therapy Alliance require that patients are not discharged until 72 hours have passed: the man in question left after 24 hours, and the facilitators did not manage to stop him.

“We tried to stop him because we do not want people leaving in the middle of the night. Later we had contact with his girlfriend and we understand that he went to the hospital. He left the hospital when it turned out that he was in perfect physical condition. A day later he went to the hospital again, but again they could not find anything. He committed suicide later that day.” – Statement from Ayahuasca International (translated from Dutch)

Ideally, as stated in the clinical guidelines, the man should have been cared for in the 72 hours following his ceremony, to ensure that he was in good mental and physical health. This is a difficult situation, and we don’t know if the person in question had other mental or physical health problems.

It’s possible the facilitators failed in their duty of care in allowing the participant to leave. At the same time, it can also be challenging to compel someone to stay if they insist on leaving (and appear to be fine). It’s even more difficult to pin a participant’s suicide outside of a ceremony or retreat venue on the failings of the provider. With depression and suicidal ideation being highly stigmatized conditions, many at-risk individuals keep their intentions to themselves. Regardless, the tragedy appeared to have provoked the authorities to initiate a subsequent raid on the ayahuasca ceremony. This is why comprehensive medical screenings are critical, especially when a psychedelic provider has a high-volume operation.

Another Man Dies During a Multi-Psychedelic “Warrior Retreat”

In another separate event, some months later, a man died in the small town of Zeeland during a “Warrior Retreat” hosted by Iboga Farm. According to the Dutch news article dated Wednesday, September 25, 2019, local residents awoke on Tuesday night to a great deal of noise coming from the “Warrior Session.” A neighbor saw someone in the garden in a psychedelic state, and a car tore away bearing a man in critical condition to a nearby hospital in Oostburg. The victim was resuscitated at the door of the hospital, then was transported by helicopter to a hospital in Ghent, where he died.

The typo-riddled, garishly multi-colored Iboga Farm website lists a fully packed retreat schedule with many substances on offer. The Warrior Retreats include a mindblowing array of strong psychedelics, packed into a mere 3 days, such as:

• Rapé (tobacco snuff)
• Sananga (plant-based eye drops)
• Kambô (secretions of the Phyllomedusa bicolor tree frog)
• Bufo alvarius (5-MeO-DMT containing toad secretions)
• Ayahuasca
• Changa (plant-based DMT)
• Psilohuasca (psilocybin ayahuasca analogue)

Three people were arrested in connection to the fatality. The cause of death is currently unknown. While it could be that the individual died of causes unrelated to the blend of powerful psychedelics offered that week, the combination of ayahuasca and Bufo is risky, and there have been at least two deaths where the combination of Bufo alvarius with harmalines, compounds present in ayahuasca, was the cause.

Only a few days later the Supreme Court made their official decision on ayahuasca, banning its use without allowing for religious exemptions.

Why Should Ayahuasca Practitioners Be Concerned?

These events in the Netherlands are worrying. Activities that attract the scrutiny of the authorities can directly lead to prosecutions, and even nationwide prohibition of ayahuasca.

Considering the Supreme Court of the Netherlands decided that “public safety” trumped religious rights and freedoms, facilitators must be aware that governments will be especially critical of any appearance of public threat.

“Those who hold ceremony have a responsibility, first and foremost, to the protection of their participants. In the absence of this, negative events – and the consequent adverse publicity – become more likely, which will affect not only those involved but the whole of the ayahuasca community. As drinkers of ayahuasca should know, everything is interconnected. The disappointing decision in the Dutch Supreme Court and the rise of organisations such as Ayahuasca International are no doubt not distinct.” – Charlotte Walsh (legal advisor at the Ayahuasca Defense Fund)

The events that make the front-page news are not the stories of chronic sufferers finding relief from ayahuasca; they’re the stories of retreat centers that have been negligent and unethical, and have been linked to deaths, abuses, or extortion.

Negative Publicity Creates Real Setbacks for Psychedelic Progress

Every time a psychedelic ceremony goes wrong, mainstream media and policy makers will scrutinize the entire psychedelic movement. This puts everything that the psychedelic movement has been working for – from legal therapeutic access to rational, evidence-based drug policy – at risk of being brushed aside by the broad stroke of fear-based prohibition. Legal precedents established in one country can threaten the religious freedoms of ayahuasca practitioners in other countries, restricting access to potentially life-saving psychedelic therapy for those who need it most.

Even ceremonies that do not involve ayahuasca could risk the future of the psychedelic movement. As the recent raid in the Netherlands showed, a death ostensibly linked to iboga appears to have triggered the raid of an ayahuasca ceremony that was connected to the same facilitators.

Irresponsible Ayahuasca Providers Jeopardize Access for Everyone

Ayahuasca retreats or ceremonies that bring attention to themselves, whether it’s through high-profile marketing campaigns or high-profile tragedies, tend to attract greater scrutiny from authorities seeking justification to prohibit ayahuasca and keep all psychedelics illegal. For example, recent raids in Romania were prompted by organizers advertising their illegal retreats online.

Even though numerous scientific studies demonstrate psychedelics to be considerably less harmful than other recreational drugs, such as alcohol and tobacco, in an environment of global prohibition it remains prudent for psychedelic providers to avoid too much visibility, and refrain from running highly visible paid advertisements in order to stay under the radar.

At the end of the day, retreat participant safety needs to remain a more important priority than filling a retreat to capacity through paid ads that market a strong mind-altering psychedelic to the general public.

If ayahuasca providers are able to demonstrate that ayahuasca can be taken safely and ethically, and that it poses no threat to the public – these are the actions that will have the most impact in securing safe and legal access of a long-standing ancestral plant medicine for all who wish to take it.

How to Protect Ayahuasca in the West

If ayahuasca facilitators and participants wish to further the West’s understanding and acceptance of the spiritual or therapeutic use of ayahuasca, recognizing the fragile legal status of ayahuasca is an important first step. Next is to conduct retreats and ceremonies responsibly, safely and with the highest integrity.

What does this mean?

Firstly, it’s important for ayahuasca providers to understand that the types of events that attract negative attention of government officials and mainstream media, and suggest that “ayahuasca is dangerous to society” are:

• Avoidable deaths
• Sexual abuse
• Highly visible advertising campaigns (involving questionably legal substances)
• Unethical marketing tactics
• Perceived recreational or hedonistic approaches to ayahuasca consumption

Secondly, it’s important for ayahuasca providers to understand that responsibility extends beyond guaranteeing utmost physical safety for ceremony participants, and needs to include consideration of the venture’s activities on the surrounding community, the greater ayahuasca community and society as a whole.

Maintaining narrow focus on one’s own profitability and growth can be shortsighted, since criminalization impacts everyone.

Basic Guidelines for Providers:

Here are some basic criteria for ayahuasca providers to consider when it comes to “not rocking the boat.” These should be considered the very minimum guidelines for an ayahuasca organization, and there are many more things to take into account if you want to become an example of excellent and responsible facilitation.

Don’t

• Don’t make unsubstantiated claims. If you’re offering an ayahuasca ceremony, don’t misrepresent its potential to heal / cure diseases or health conditions that have not been medically substantiated. Making claims about the benefits of indigenous plant medicines that aren’t backed up by research or considerable traditional knowledge is highly unethical, and risks undermining the reputation of psychedelic therapy and legalization efforts, especially if your venture uses science as a way to validate your services.
• Don’t take advantage of vulnerable people. This includes using unethical marketing techniques on people who may be in a highly suggestible state during or immediately following a psychedelic experience – but also includes giving false hope to people who are suffering and desperate.
• Don’t market ayahuasca retreats through highly visible ad campaigns to a general public. Adverts in glossy magazines, on TV, or through paid social media ad campaigns can attract unwanted attention from authorities and invite a crackdown, because ayahuasca use is perceived to be getting out of hand.
• Don’t compromise guest safety – it should be your #1 priority. Do not engage in dangerous or untested practices, make sure you are fully educated about all medical risks. Consider having a qualified medical professional on call during ceremonies, if not present during retreats.
• Don’t have any sexual contact with guests. It seems like this should be obvious, but some people aren’t educated about the importance of respecting the boundaries of a healer/patient relationship, or about the nature of consent when substances are involved.

Do

• Do hire qualified facilitators. Whether this is a professional therapist, or a mix of therapists and responsible indigenous shamans, you should ideally not be offering any kind of therapy without at least the advice of a number of experts. Just because you like psychedelics, doesn’t necessarily mean you are entitled to heal people.
• Do consider the cultural and ecological impact of your venture. Where has your medicine been sourced? Have you practiced sacred reciprocity with the indigenous people whose heritage is tied to ayahuasca? Have you considered the environmental impact of your harvesting method? 
• Do offer subsidized places to less fortunate people. Especially if your retreat makes a large profit, some of your earnings could be going back into a program that supports those less fortunate to encounter the healing benefits of psychedelics.
• Do make alliances with the wider community. In order to preserve the strength of the psychedelic movement, it’s desirable for retreats or ceremonies to cooperate with the wider community, and forge strong relationships with researchers and advocacy groups who can offer advice and guidance.

Constanza Sánchez of the Ayahuasca Defense Fund suggests that overall the most important thing, aside from avoiding obvious advertisements, is the responsibility of practitioners to the safety of their participants:

“In my opinion, the central issue is not whether or not a specific group should avoid advertising a specific ceremony, or a specific practice. The crucial issue is that these practices must be developed by qualified people and under the principles of responsibility, knowledge, safety, reciprocity and sustainability. That is, acting under a paradigm of responsibility and risk reduction, so that if an unfortunate incident does occur, neither the press nor the public authorities can spread the perception that the incident took place because the individual or group is acting without principles and simply seeking profit. The ayahuasca community has to constantly deal with prejudices, stigma and persecution: to change this perception, one important first step is to act with the highest standards of responsibility and integrity.” – Constanza Sánchez (program director at the Ayahuasca Defense Fund)

Basic Guidelines for Participants:

Even if you’re new to ayahuasca, or someone who uses ayahuasca regularly, you can directly contribute to advocating for ethical and safe ceremony spaces.

Firstly, you can choose providers that follow the basic guidelines indicated above, and if they do not, inquire why. From there you can assess whether this provider is adequately concerned about ceremony safety, in addition to the wellbeing of the overall sector.

If you are vetting a new provider here are some questions you can ask:

• What are your criteria for medical safety?
• Do you have a medical emergency process? What does this look like?
• Who trained you to administer ayahuasca?
• At what point did your teacher decide you were ready to lead ceremony?
• In what lineage did you apprentice? And for how long?
• What is in the ayahuasca? Who made it?
• How do you promote your ceremonies?

Learn more about protecting yourself from unsafe ayahuasca facilitators in our Spiritual Evolution With Sacred Plant Medicines course.

Keeping Our Right to Use Ayahuasca Intact

The recent events in the Supreme Court in the Netherlands have shown that governments don’t need much of an excuse to remove religious rights. For many, this is yet another assault on cognitive freedom – the fundamental human right to maintain sovereignty over one’s own mental processes, cognition, and consciousness.

Too often, psychedelic providers dismiss the concerns of policy advocates and researchers as “fear-based” or “scaremongering,” preferring to focus on the feel-good space around transforming the lives of as many people as they can. There’s a spiritual belief (as well as bypass), that by only focusing one’s thoughts on “love and light” that no harm can come to their participants, their venture or ayahuasca. This myopia causes their reluctance to step into the difficult work of actively engaging in policy change and advocacy, or in the very least, maintaining high standards in safety and integrity in their own operations.

All it takes is one problematic provider to cause the entire house of cards to come tumbling down.