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Organ Transplantation And Its Legal Prospects

Written by: Jayant Prakash Patel - 5th BBA LLB, Symbiosis Law School, Pune
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The development and application of technologies will arguably be the major driving force for the evolution of the world society in the first part of our new century. In medicine, agriculture, material science, communication and host of other areas, new technologies promise unimaginable changes in our lives. And, yet in the midst of the euphoria surrounding this rush of invention, there is concern.

As Albert Einstein said: “never forget this, in the midst of your diagrams and equations: concern for the man himself and his fate must always form the chief interest of all technological endeavors.”

This article discusses the exceedingly difficult decision-making processes, legal and otherwise. It must balance the potential benefits, public’s feelings and fears. In doing so, we recognize the need to assess the benefits and risks of technologies; even if those benefits and risks are ill defined.

The transplantation of an organ from one body to another is known as the organ transplant. The person who gives the organ is called the donor while the one who receives is called the recipient. Organ transplant is done to replace the recipient’s damaged organ with the working organ of the donor so that the recipient could function normally. The person who is donating the organ (donor) could either be a living or a deceased.

Organ Transplantation is a boon to medical industry as it has helped in saving the lives of those who would have died otherwise. There are various laws that are to be followed while conducting the organ transplant....
Kidney, Liver, heart, lung, pancreas, small bowel and sometimes skin etc. are some of the organs that can be donated for an organ transplant
Following the use of a drug called cycloscronin, success rates in transplants became phenomenal in the West. This prompted more and more people to come forward and donate their organs. The success of the transplants, however, became its own victim. Before long, rich people and foreigners started coming to India to buy organs. It was a flourishing business, until the Human Transplant Act was introduced in 1994. Some middlemen and touts however still exploit the loopholes in the Act and the business of organ transplant continues unabated.

For years, India has been known as a "warehouse for kidneys" or a "great organ bazaar" and has become one of the largest centers for kidney transplants in the world, offering low costs and almost immediate availability. In a country where one person out of every three lives in poverty, a huge transplant industry arose after drugs were developed in the 1970's to control the body's rejection of foreign objects. Renal transplants became common in India about few years ago when the anti-rejection drug cyclosporine became available locally. The use of powerful immuno-suppressant drugs and new surgical techniques has indirectly boosted the kidney transplant activities.

The dramatic success rates of operations, India's lack of medical regulations and an atmosphere of "loose medical ethics" has also fueled the kidney transplant growth. The result has been that "supply and demand created a marriage of unequal, wedding wealthy but desperate people dependent on dialysis machines to those in India grounded down by the hopelessness of poverty". The pace of supply for kidneys hasn't kept up with the demand. Consequently, the poor and destitute, victims of poverty, have either willingly sold their kidneys to pay for a daughter's dowry, build a small house or to feed their families or have been duped or conned into giving up their kidneys unknowingly or for very little sums of money. Ironically, medical technology.

Meant to advance and save human lives has been abused to such lengths, that in some cases, it has resulted in the death of innocent individuals. (for money), and the shortage of kidneys, India has become (along with China) an "international center" for illegal organ trade. Most countries require living donors to be family members, or that organs must be removed from cadavers, usually accident victims. Because of the stringent rules regarding organ transplantation in other countries (specifically, that it is illegal and unethical to remove kidneys from a live donor, especially transplantation of kidneys. Furthermore, until recently, with the passage of the Organ Transplantation Act in 1994, there was not any legislation prohibiting the sale of organs in India. Due to the naiveness and desperation of poor, along with the fact that donating a kidney isn't particularly risky as it does not impair one's health, kidneys have become easily available in India.

Combined with low costs and the emergence of an illegal kidney black market which caters to the kidney buyers from around the world, many foreigners and the rich in India have taken advantage of and benefited from the kidney trade.

Object of The, 1994 ACT:
An Act to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs and for matters connected therewith or incidental thereto.

Organ transplant law does not allow exchange of money between the donor and the recipient. According to the Act, the unrelated donor has to file an affidavit in the court of a magistrate stating that the organ is being donated out of affection. After which the donor has to undergo number of tests before the actual transplant takes place. The Authorization Committee set up for the purpose ensures that all the documents required under the act have been supplied. If it is found that the money has been exchanged in the process then both the recipient as well as the donor is considered as prime offenders under the law.

Loopholes In The Organ Transplantation Act of, 1994

The organ transplant was big business before the Act was formulated. But it has not made the difference it set out to after its formulation. The clauses in the act are being exploited openly. A case in point is the clause which allows, “unrelated donors offering organ on emotional grounds," and the inclusion of the wife as a prospective donor.

Only an affidavit has to submitted to the Authorization Committee for clearance. Sure enough, the committee has been flooded with affidavits prepared by middlemen in connivance with the hospital staff, police and at times, even committee members.

Solution To Curb The Defects
The Act has to been amended. The clause relating to emotional donors should be struck off. In the West, 20,000 transplants take place annually, all from cadaver patients. But in India the figure stands at a dismal 4000-5000 transplants per year. Secondly, the wife should be excluded from the clause. Instead, cousins, nieces, nephews, uncles, aunts should be included. A HLA Tissue typing should be made mandatory to ascertain the relationship of the donor with the patient.

To some extent amending the organ transplantation will certainly solve the problem but a government initiative should also be encouraged. They have not been addressing the problem properly. The program to make cadaver donors has been deliberately sabotaged by vested interests. As far as the cost of sustaining the cadaver donor once he is brain dead is concerned, it should be borne by the family of the recipient issues like these should be addressed.
The recent case of an Indian doctor from Gurgoan, Amit Kumar actually procuring organs from live Indian donors for foreign and rich patients is an eye opener. What has discouraged cadaver donations is the absence of any registration of the patients suffering from diseases requiring organ transplantation. As a result the deals are done unofficial without any database to give the actual figure. When it happens with kidneys, it is bearable as it is a paired organ, but what with liver transplants showing a success rate of 60-70% possibilities of tout involvement increases manifold.

The Hon’ble High Court of Delhi in CWP No. 813/2004 vide its order dated 06.09.2004 had set up a Committee to examine the provisions of Transplantation of Human Organs Act, 1994, and the Transplantation of Human Organs Rules, 1995. The report was submitted on 25.05.2005.
A National Consultation was held on 18.05.2007 and the report was submitted in the second fortnight of August 2007. The recommended changes required amendments in the Transplantation of Human Organs Act, 1994 and the Rules framed there under. These changes are intended to facilitate genuine cases, increase transparency in transplantation procedures and to provide deterrent penalties for violation of the law. In so far as the Act is concerned, the following amendments have been proposed:
1. To empower Union Territories, specially Government of NCT of Delhi to have their own appropriate authority instead of DGHS and / or Additional DG (Hospitals).
2. To make the punishments under the Act harsh and cognizable for the illegal transplantation activities to deter the offenders from committing this crime.
3. To provide for registration of the centers for removal of organs from the cadavers and brain stem dead patients for harvesting of organs instead of registration of centers for transplantations only.

4. To allow swap operations between the related donor and recipients who do not match themselves but match with other similar donors / recipients.
Sale / purchase of human organs are already prohibited under Transplantation of Human

A National Consultation was held on 18.05.2007 and the report was submitted in the second fortnight of August 2007. The recommended changes required amendments in the Transplantation of Human Organs Act, 1994 and the Rules framed there under. These changes are intended to facilitate genuine cases, increase transparency in transplantation procedures and to provide deterrent penalties for violation of the law.

In so far as the Act is concerned, the following amendments have been proposed:
1. To empower Union Territories, specially Government of NCT of Delhi to have their own appropriate authority instead of DGHS and / or Additional DG (Hospitals).

2. To make the punishments under the Act harsh and cognizable for the illegal transplantation activities to deter the offenders from committing this crime.

3. To provide for registration of the centers for removal of organs from the cadavers and brain stem dead patients for harvesting of organs instead of registration of centers for transplantations only.

4. To allow swap operations between the related donor and recipients who do not match themselves but match with other similar donors / recipients.
Sale / purchase of human organs are already prohibited under Transplantation of Human Organs transplantation Act, 1994. Appropriate authorities established under this Act are responsible and empowered to check the illegal activities of human organs trafficking

There may be socio-economic disparities in India which encourage illegal trading in organ but the ineffective implementation of the laws is the single major cause of such illegal trading. Recently the boom of medical tourism which is very cheap in India may be another reason for flourishing of such trade. Kidney racket unearthed last year in Gurgoan clearly depicts the loophole in our legal and implementation system, which is required to be addressed as quickly as possible.

The author can be reached at: pateljayant@legalserviceindia.com / Print This Article

Articles
Human Organs Transplantation:
An organ transplant is a surgical operation where a failing or damaged organ in the human body is removed and replaced with a new one. An organ is a mass of specialized cells and tissues that work together to perform a function in the body.

Organ Transplantation - Legal, Social And Ethical Issues: Organ transplantation is an issue that must be dealt with sensitivity. Orienting society to accepting the ‘value of life after death' will go a long way in strengthening transplantation as medical treatment.

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