Scroll Top

TRANSPLANTATION OF HUMAN ORGANS AND TISSUES ACT, 1994: FALLACY OR A GUARDIAN OF ORGAN TRADE

Introduction

In the field of medical science and technology, transplantation of human organs is a prominent method of saving human lives. It has gained immense success and popularity amongst the masses. ‘Transplant’ is a process in which a portion/organ of the donor’s body, be it living or deceased, is surgically removed and placed inside the recipient’s body, for therapeutic purposes.

A Brief History

In 1962, people were becoming familiar with human organ and tissue transplantation. The primary legislation was passed in 1994, in India, to regulate human organ and tissue transplants for medical purposes. Since matters related to health were covered under the state list, all the states adopted this act, apart from Andhra Pradesh and Jammu Kashmir. Certain states felt the need to revamp the act and introduce amendments to deal with inadequacies in the efficiency and relevance of the act with the changing times, thus, in the year 2014, rules were notified.

Donor CategorIEs

Different types of donors include living-related donors, spousal donors, other than near-related donors, etc.

Near Related Donor

Parents, siblings, and children are included in this list. In the year 2014, another sub-category of ‘grandparents’ was introduced. The only contention is that relationship between the donor and the recipient should be established through documentary evidence, such as a birth certificate, relationship certificate from the tehsildar, identity certificate, and ration cards, as laid down in the act. If no conclusive relationship is established between both parties, then techniques such as DNA Fingerprinting or human leukocyte antigen can also be applied, once it is confirmed by a laboratory accredited with the National accreditation board for Testing and Calibration laboratories.

Spousal Donor

This kind of organ transplant takes place in either of the spouses. A marriage certificate and a marriage photograph are kept for documentation along with the age and number of children.

Swap Donation

2014 rules also enlist this kind of organ donation. For instance, there are 2 families. In Family 1, the donor is A+ and the recipient is B+. In Family 2, the donor is B+ and the recipient is A+. In this scenario, the donor of Family 1 can donate to the recipient of Family 2 and the donor of Family 2 can donate to the recipient of Family 1. This process happens simultaneously to avoid reneging.

Other than near-related donors

Within this category, the relationship between a donor and a recipient is to be well established because there are high chances of monetary gains involved. The donor and the recipient are not related by blood but many times poor people are roped in as donors in exchange for monetary rewards. This category involves approval from the authorization committee and the committee further evaluates on aspects such as a) reasons for donating an organ, b) relationship between the donor and the recipient by way of photographs, c) Involvement of a tout, d) financial condition of the donor, e) health status of the donor, whether he is a drug addict or not, f) whether the living donor is conscious of his decision and is aware of the consequences and g) any kind of objections recorded per se by the next of kin of the donor or if next of kin is not present then any adult person related to the donor. Based on the outcomes flowing from these evaluations, a donor is allowed to donate his/her organ.

Deceased Donor

This category of donor involves a person donating his organs after brain death or what we call brain stem death. It is a clinical procedure conducted by doctors and only when an authorized certificate is issued, can the transplantation take place.

Foreign Donors

Cases that involve an Indian recipient and a foreign donor, have to come within the ambit of near-related donors. Any individual who is not a near-related donor cannot donate. Moreover, if both, the donor and the recipient are of foreign origin but are wanting to get the transplant done in India, then they need to have approvals from their country’s embassy establishing their relationship or from the government of the respective country, if there is no particular embassy present in India. Authorization committees deal with such types of cases.

Organ Trafficking

The unforeseen reason for organ trafficking is low supply and high demand. Most common organs that are transplanted include lungs, heart, kidneys, and liver whereas approximately 10% of all transplants in the world are deemed to be illegal. Every country with Iran being an exception, has put a curb on organ trafficking. Billions are made by resorting to these illegal practices.

The very first successful organ transplant in India took place in the year 1968, in Mumbai and eventually, the Transplantation of Human Organs Act was passed. Rather than enforcing rules and regulations in place stringently, it failed to become a watchdog for organ trafficking. People started misusing the law and eventually saw it as a means to earn money. The ones who were supposedly entrusted with the responsibility of saving lives by adopting ethical means were willfully involved in such a racket.  

One such famous example is that of Dr. Amit Kumar, a native of Maharashtra who was held in the Gurgaon Kidney racket case in the year 2008. Later on, he shifted his base to Dehradun and with his trusted allies had a very flourishing illegal practice. Another striking case is that of Dr. Parveen Kumar Sareen and Dr. OP Mahajan who were arrested with several middlemen and organ donors. The most astonishing aspect is that Dr. OP Mahajan was the principal of Government Medical College, Amritsar, and acted in the capacity of the chairman of the authorization committee, entrusted with the power of keeping checks and balances on organ transplantation and enforcing rigorous penalties against the defaulters.

Conclusion and Way forward

To obliterate such a practice, not just legal professionals but other stakeholders should also be engrossed in keeping checks. For example, these transactions involve huge amounts of cash being withdrawn from the bank and charities donating loads of money to medical tourism websites. Individuals should be vigilant about such transactions taking place and appropriate measures should be adopted timely and enforced efficaciously. Moreover, to avoid a potential trafficking situation, one can report to the national human trafficking hotline number. Awareness should be created regarding the ill effects of human trafficking and how short-term monetary gains can have a lifelong impact on the health of the individual. More people should come forward and sign up for a donation of organs so that after the donor’s life cycle comes to an end, he can save another life. This way the menace of shortage of organs worldwide will gradually improve. One should give an account of any illegal act that one may come across or even have the slightest suspicion. Any place where human trafficking takes place will involve certain equipment and a setup. Just being mindful of one’s surroundings and reporting aptly to the relevant authorities, will save so many lives.

Author(s) Name: Mehar Khaneja (Symbiosis International (Deemed) University)