Updated: Mar 31, 2021
Organ donation is a field that has not yet been able to gain ground in India. This is evident from India’s low Organ Donation Rate, which is 0.26 per million, whereas many of the developed countries have it somewhere in the range of 30 - 40. The demand for organs has been on a constant rise and the supply has not increased to meet this growing demand. This imbalance has resulted in the commercialization of donations and has resulted in the setting up of illegal markets for the purpose of procuring organs. Commercial organ trading in India finds its root cause in the socio-economic conditions in the country as well as the framework of the existing legislations governing the issue. This article tries to critically analyse the Transplantation of Human Organs and Tissues Act, 1994 and thereby explain the evident shortcomings of the Act. It also tries to explore the position of the donors in situations of illegal transplants and also includes certain suggestions for reforms on the subject.
A study of lacunae in the Transplantation of Human Organs and Tissues Act
Post 1980s, India saw a tremendous risein the illegal trading of organs and exploitation of the victim-donors who agreed to donate organs and tissues solely for monetary gains. Reeling under this pressure, the government of India passed the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter “the Act”). The Act was legislated with the aim of bringing a stop to the commercial dealings of organs and tissues and it makes the buying and selling of organs and tissues an offence. § 9 of the Act provides that organs or tissues cannot be removed from a donor’s body before his death for transplantation in a recipient, unless the recipient is his near relative. Prima facie, the aim of this section seems to be to prevent transplantation in cases where there is an economic motive. What the section lacks is the consideration that there can be an economic motive, even between relatives. Secondly, there are no definite ways for determining if a person is donating his/her organs solely on an emotional basis. Furthermore, § 9(3) mentions that if a person is authorizing a donation on the basis of attachment or affection towards the recipient, it has to be priorly approved by the Authorisation Committee. This section has garnered criticism from both the sides- the donor’s as well as the recipient’s. Many medical practitioners working in this field have questioned this on the grounds that affection or attachment can be a subjective concept and its interpretation will solely depend on the Authorisation Committee. On the other hand, at times, the donor may be coerced into giving his organs or tissues and lie about the existence of a relation of affection or attachment. Forging documents for establishing that the donor and recipients are related to each other is also a commonplace practice. Such malpractices are also favoured by the fact that the Authorisation Committee does not deny the application unless there is a direct complaint or an obvious reason indicating the absence of affection or attachment among the donor and the recipient.
A 2019 news report in The Times of India reported the story of Vardhan, a Lucknow based man, who had donated his kidney in return for money and was later a key witness in the investigation of the case. He stated that he was taken to a hospital for initial testing and was later given training for the interview before the Authorisation Committee. He was asked to state before the committee that he was a relative of the recipient, post which he was given the part payment. This is just one of the numerous cases of illegal transplantations that take place all over India every year.
Protection to the organ donors
The above given example brings into light the plight of the donors who agree to donate under circumstances of dire need or at times, even coercion. More often than not, in situations like these, the donors are the ones with poor financial background who agree to donate in exchange of financial aid. However, the law does not take into consideration such circumstances and treats all the donors who donate in return of money equally. Moreover, the donor is penalized in the same way as the recipient, the trader or the middleman. It is pertinent to note that at such times, the donor is not just a person who has engaged in illegal trade, but he himself is a victim. Such donors are in a very disadvantageous position from all sides and are often ignorant of the repercussions of such surgeries. In such situations, the actions of the victim-donors have to be decriminalised. Not only will this make the law more moral, but it will also encourage the donors to come forward and speak, which will consequently result in many organ trafficking rackets getting exposed. The Vidhi Centre for Legal Policy also stated in its report on this subject that the victims have to be included as a part of the initiatives that are undertaken to prevent illegal transplants.
Recommendations for reform
The menace of organ trafficking in India, primarily exists due to shortage in supply of organs and tissues. Thus, the first necessary step for the government would be to create awareness among people and encourage cadaver donations. Once the demand and supply are in balance, the need for black markets for organs will reduce. Secondly, there has to be a pan-India organ donation registry. This country-wide available list will help in bringing about transparency in the process and will help in creating uniformity in the management of organ donations. However, for this, the laws relating to organ donation and transplants have to be uniform for all the states in the country.
Another much required reform is with regards to the Authorisation Committee. The Committee, while rejecting any application is required to note its reason for rejection in writing. However, quite frequently, the Committee does not provide the donors with the reasons for the rejection, creating ambiguity in the procedure. In addition to this, in cases of swap or paired transplants [as mentioned in § 3(A) of the Act], or when the donors and the recipients belong to different states, the No Objection Certificate (NOC) as to be obtained from the State Authorisation Committee of the respective states. This process becomes tedious and time consuming and may at times, cost the life of the recipient. Thus, the mechanism of the Authorisation Committee has to be made less complex and time consuming and there has to be uniformity and transparency in the working of these Committees as well.
The socio-economic conditions in the country coupled with the prevailing illiteracy, lack of awareness and the weak legal framework make India prone to activities of organ trafficking and illegal transplantations. The improvement in the socio-economic conditions will be a process of gradual change, however, reforms in the laws can begin bringing about a change almost immediately. The THO Act was passed as many as 25 years ago, followed by multiple amendments and rules and regulations. However, the present situation in the country makes it quite clear that the Act has failed in achieving its desired objectives, which makes reforms imperative and crucial.
Yuga Kane is a second year student at Maharashtra National Law University, Mumbai. Her interest lies in ___________.