In simple words, organ transplant involves a surgical procedure wherein a new organ replaces a deteriorating or damaged organ in the human body. It is indisputable that organ transplantation offers the hope of life for people suffering from a wide range of critical health issues. Although organ transplant reaps dramatic benefits for the recipient and most often prevents early death and substantially improves the quality of life, just like in other medical procedure free consent to donate is an essential component and in absence of such informed consent others involved in the transplantation procedure will be held liable for the same and may even in certain circumstances face criminal proceedings. Transplantation of human organs is an effective lifesaving treatment recognized across the world. One of the major problems faced by healthcare providers globally is the acute shortage of legally obtained organs, cells and tissues. This is the main reason where the crime of illegal trafficking of human organ emerges.
Today there is a global insufficiency of organs required for transplantation. There are more patients in need of organs than there are available through the legal route and thus the gap between the demand and supply continues to dilate. In order to increase the supply of organ donations, policy-makers globally are implementing policies that are based on different levels of autonomy. In many countries, the success of the deceased organ donation programs is hindered by the sociological, cultural and legal factors. Countries which are developed, which boast increased rates of deceased organ donation also fails to meet the demand for organ donations. This drawback of shortage of legally obtained organs has become a breeding ground for the growth of international illegal organ trade. Potential recipients travel abroad to countries with dubious record of enforcement of legal provisions promoting commercialization of organ donation and purchase organs.
The Problem of Organ Trafficking
Organ transplanting in India has a much shorter history compared to most of the developed countries in the world. It emerged in India for the first time in the 1970’s and picked up force in the 1980’s, especially kidney transplants in selected urban areas. With several clinics cropping up around the country and no effective regulation of the newly emerged practice, kidney trade boomed in India at that point of time with hundreds of foreign patients travelling to India for transplantation from a paid donor through the help of brokers. When the ongoing kidney scam reached its peak in the early 1990’s, the Central Government established a committee to look into organ transplantation and submit a report which became the basis for drafting a regulatory framework for organ transplants. The result of this exercise is The Transplantation of Human Organs and Tissues Act (THOTA), 1994 followed by the Transplantation of Human Organs Rules in 1995.
The Transplantation of Human Organs and Tissues Act (THOTA), 1994:
The THOTA, 1994 was enacted during the time, when in India, due to the absence of any legislation, unbridled sale of human organs was occurring on a large scale. The Act aims to provide for:
- Regulation of removal, storage and transplantation of human organs for therapeutic purposes, and for,
- Prevention of commercial transactions with human organs.
According to Section 18 of the THOTA Act, a person involved in the removal of any human organ without any authority is punishable with imprisonment which can extend up to 10 years and/or fine which can extend up to Rs. 20 lakhs. If the offender happens to be a medical professional, it would lead to strict action against them, including removal of their name from the register of the medical council for 3 years and if it continues, then their name will be removed from it permanently. Also, under Section 19, if any individual is involved in the commercial trading of human organs, then such a person is punishable with imprisonment for a period not less than 5 years but can extend up to 10 years and a fine which will not be less than Rs. 20 lakhs but can be extended to Rs. 1 crore.
The Transplantation of Human Organs and Tissues Act, passed in the year 1994, was an important milestone and a major step forward towards regulating the transplantation of human organs and preventing commercial negotiations of the same. Despite these efforts, illegal organ trades continue to persist in a widespread manner across the country. There is always a high demand for various types of organs since a large number of patients are waiting for them, who are in several diverse stages of organ failure. The lacuna in the law lies in the framework of the screening committee as it lacked the apparatus to figure out necessary information regarding the donor of the organ. This makes it difficult to identify the legitimacy of the donor, as most of these individuals are instructed by middlemen on the procedure to follow. There is a dearth of a system that can effectively keep a check on the transplantation. If organ trafficking is not under regulation and supervision, disappearances, especially among orphaned children, violence and kidnapping rackets may continue to develop including the theft of organs in the near future. The said Act requires adequate amendments to suit the imperative necessity in the country. The objective of the legislation must address a wider scope to cover the interest of the public and also the ethical issues surrounding organ transplantation. The bigger picture encompasses the availability and the distribution of organs, apart from this, its large-scale commercialization must be addressed by the law.
Jhanavi M, Commercialisation of Human Body and Bodily Materials, Ex Gratia Law Journal, (March 7, 2021), https://exgratialawjournal.in/blawg/human-rights/commercialisation-of-human-body-and-bodily-materials-by-jhanavi-m/.