Fresh Lease Of Life And The Transplantation Of Human Organs Act, 1994: Dangers Of Illicit Organ Trafficking To Indian Medical Industry

One of the breakthroughs in Medical Field was Organ Transplantation, also referred as Organ donation in layman terms. Defined as the surgical removal of an organ or tissue from one person (the organ donor) and placing that organ or tissue into another person (the recipient), it has been one of the great advances in modern medicine.

In 1954, the world's first transplantation was undertaken by Ronald Lee Herrick, who donated a kidney to his identical twin brother. The procedure was carried out by Dr. Joseph Murray, who also received the 1990 Nobel Prize in Medicine for his contributions to the field of organ transplantation.

Back in India, several attempts were taken in the 1970s to master the surgical procedures involving transplantations and they were quite successful as well. However, the aftermath was that unrelated kidney donation from economically underdeveloped areas began to occur rapidly along with the commercialization of organ donation becoming a recognized and accepted component of the programme. The ethics of transplants in India have always been precarious since this was acknowledged, and certain evil deeds were tolerated as standard procedure.

Further, this exploitation was clearly visible to the Medical Fraternity of both India and the West, which ultimately sparked protests within the country as there was no legislation to regulate such medical procedures.

Yielding to the pressure mounted, the Government passed the Transplantation of Human Organ Act in 1994. To this day, it is the sole legislation which governs the norms and procedures for Organ Donations. Today, as India is the 3^rd largest nation in the world where Organ Donations happen, has the THO Act been able to function effectively or been rendered ineffective due to enforcement snags?

Provisions Of The THO Act And Its Potency:

The Transplantation of Human Organ Act, 1994 was passed to combat the illegitimate nexus of organ trafficking cartels, which had firmed their roots in the Country, and to surveil the whole endoskeleton of Organ Donation framework.

The Act, in its initial stage, was first enacted in Union Territories and later in other states. The Act, in its attempt to regulate Transplantations, defined various terms such as 'Donor', 'Recipient', 'Appropriate Authority', 'deceased persons' (in cases where organs were to be harvested after death), and other appropriate terms.

The Section-2 of the Act contains such definitions and defines a Donor as "any person, not less than eighteen years of age, who voluntarily authorises the removal of any of his human organs for therapeutic purposes under sub-section (1) or sub-section (2) of section 3;"

Here, "voluntarily'' signifies consent of the donor but what about the cases where such Consent cannot be obtained, either due to Injury or Mental-Infirmity? For this, the Act also has a provision where the decision can be taken up by the "near relative", which refers to the Legal Heir/Person.

Also, Medical Authorities have to register themselves under this Act, in order to be deemed as legally authorized to carry out such procedures. Failing to do so would entail punishments, if caught doing Transplantations beyond reasonable doubt.

Earlier, only Kidneys used to be transplanted, but the act recognized brain death as a 'type of death'. With this recognition, it became possible to begin solid organ transplants for the liver, heart, lungs, and pancreas in addition to kidney transplants.

The Act declared selling of organs to be illegal and lay out harsh punitive measures, such as rigorous imprisonment and heavy fines on the Offender. As the Section 19A states-

"shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall be liable to fine which shall not be less than five lakh rupees but which may extend to twenty-five lakh rupees.''

The Act not only has measures to deal with commercialization, but also in cases where an Unauthorized Transplant took place, and later rain down heavily on them with Section 18 of the Act which lays an incarceration "of three years and fine of five lakh rupees"

Later, the Act received amendments in 2011 and 2014, which increased its purported scope of Transplantation and increased the pool of Donation, by including Grand-Parents and Children as well. A set of Definitions was added and a "Brain Stem Death" Board of four members was also constituted. This time, there was also a 'Mandatory inquiry and informing option' to donate in case of unfortunate event of brain stem death of an ICU patient for the purpose of organ donation. Apex National Bodies and State bodies were also formed and a Transplant Coordinator was assigned as well, whose duty was to conduct coordinate all events relating to transplantation.

Loopholes And The Gap Between Organs And Patients:

Even with such well-crafted Sections and Amendments, there were certain issues cropping up the THO Act. Most of the time, the law's execution has been poor, and its provisions have frequently been misused, as the provisions available in Sub Clause (3), Clause 9 of Chapter II states-

"If any donor authorizes the removal of any of his human organs before his death under sub-section (1) … by the donor, by reason of affection or attachment towards the recipient or for any other special … prior approval of the Authorization Committee" has been misused or misinterpreted by one and all over the years, since the act was passed.

Due to such ambiguity, there has been a gray area as to the consent of donor and whether the "near relative" would not commercialize on such donations.

"Making organs a commodity by caving to commercial pressures is risky, undermines social, moral, and ethical norms, and cannot be considered a viable solution to the issue of organ shortage in a civilized society."

Nancy Scheper-Hughes, an anthropologist from Berkeley, claims in her article titled "The End of the Body: The Global Traffic in Organs forTransplant Surgery" that markets are by their very nature indiscriminate, promiscuous, and inclined to reduce everything, including people, their labour, and even their reproductive capacity, to the status of commodities, to things that can be bought, sold, traded, and sometimes even stolen. This also refers to the vast cartels of illegitimate organ trading which not only harms the Society, but also undermines National Interests and needs of patients who urgently require such Organs.

However, one of the most glaring misses of the Act is the Absence of Transplants to the Economically Weaker Sections, Middle-Class households and lower-class groups.

While an organ is free when donated to society, transplanting it into a different individual might cost anywhere from 5 to 25 lakh rupees, including the hospital's profit. And, such amount is difficult to be paid by such income groups and ultimately, people resort to unauthorized methods which go the complete opposite to the objective of Act.

The fact that most accident victims who donate their organs are from lower middle class or below, whereas most organ receivers are from the relatively limited group of people who can afford expensive lifetime medical care after transplant operation. The main reason why more than 75% of donated hearts and lungs go unutilized is the cost factor, which further aggravates the Demand-Supply of Organs, I.e., from Donor to Recipient.

Regarding "organs from poor to rich," some moderation of inequality in our nation is necessary, especially since India is among the top 10 percent of the world's most unequal nations and among the top 10 percent of populations with a high proportion of people spending more than a tenth of their income on health. This must also be taken into account given that a donor provides the organ to a hospital for free. And the Act is completely silent on this Aspect, which is still a gap that divides unused organs and patients.

Although the THO act was passed long back, neither it nor its promotion of the deceased donation programme have helped to address the organ scarcity. Moreover, there is a growing disparity between the number of organs that are needed and the number of people who are adding their names to the waiting list for an organ transplant.

The strong demand for organs has resulted in their commercialization, particularly in nations with weak regulatory institutions and high rates of poverty. Many international groups have expressed concern about the ensuing transplant tourism. Due to the large incidence of fatal road traffic incidents in India, there is a sizable untapped pool of deceased donors.

Only a few institutions and dedicated NGOs in the nation have demonstrated the viability of deceased donation. Because it would serve as the foundation for resolving many problems in the developing regenerative sciences, the ethics of organ donation has significant implications for society and the Law as well.

Views are personal.