The Transplantation of Human Organs Act, 1994 was enacted by the Parliament during 1994 and came into force on 4th February, 1995 in the States of Goa, Himachal Pradesh and Maharashtra and all the Union Territories. Thereafter it was adopted by all States except the States of Jammu & Kashmir and Andhra Pradesh, which have their own legislations to regulate transplantation of Human Organs. The main purpose of the Act is to regulate the removal, storage and transplantation of human organs for therapeutic purposes and to prevent commercial dealings in human organs. The Act contains detailed provisions relating to the authority for removal of human organs, preservation of human organs, regulation of hospitals conducting the removal, storage or transplantation of human organs, functions of appropriate authority, registration of hospitals and punishment/penalties for offences relating to aforesaid matters.
Despite having put into place a regulatory mechanism for transplantation of human organs, there have been a spate of reports in the print and electronic media about a thriving human organ trade in India and the consequential exploitation of economically weaker sections of the society. There has, therefore, been an increasing perception in civil society that while the Act has not been effective in curbing commercial transactions in organ transplant, it has thwarted genuine cases due to the complicated and long drawn process involving organ donation.
In order to make the organs transplantation more transparent and patient friendly, Cabinet has approved the proposals of the Ministry of Health & Family Welfare to amend the provisions of the Act and also for imposing stringent penalties on persons/hospitals violating the provisions of the Act.
THE AMMENDMENTS PROPOSED
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 centres for removal of organs from the cadavers and brain stem dead patients for harvesting of organs instead of registration of centres 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 is already prohibited under Transplantation of Human Organs Act, 1994. Appropriate authorities established under this Act are responsible and empowered to check the illegal activities of human organs trafficking.
The Link to the Ammendment in Rules
The incident of organ trade is shocking but not surprising in a country where there is an annual demand for 150,000 kidneys, while the transplants remain only 3,500. It’s time authorities streamlined organ transplant law
The kidney excavations at knife-point has been among the biggest stories during the last two weeks. The principal targets are three — the police for conniving with and even facilitating the macabre organ digger, the health authorities for not doing enough to stop organ trade and medicos for hoodwinking and causing the poor to bleed (sometimes to death.)
The story revives memories of Robin Cook’s novel and the film Coma (1978) which unraveled a grotesque story of how young men and women visiting a particular hospital for a simple procedure, were deliberately rendered comatose; to be strung up brain dead until their livers and kidneys were harvested by ruthless auctioneers operating a bizarre global organ trade.
The Gurgaon kidney scam is no less wacky. The difference is that in the novel, the victims were young, educated, independent and able-bodied. The Gurgaon outfit sounded rudimentary and the victims were poor, illiterate and defenceless. The only reason why it made so much news was because at long last at least one racketeer had been nabbed. Otherwise, accounts about South Indian fisherfolk ravaged by the tsunami selling off a kidney each for Rs 50,000 and 50 per cent of village populations in Pakistan living on one kidney have been recounted for years; as have been reports about thousands of organs purloined from Chinese prisoners fated for execution.
But the exposé and the notoriety that surrounds the Gurgaon scam demand wider thinking about the issue. Kidneys are the most frequently transplanted organs (around the world). In a country where poverty is ubiquitous, life is cheap and demand outstrips the supply, strategies have to be practical. Several countries have a solution whereby the donor has to explicitly dissent to organ donation during his lifetime.
In the US, the regulation of organ donation is left to individual States within the limitations of the Federal National Organ Transplant Act, 1968. Many States in the US have encouraged organ donation by allowing the donor’s consent to be entered on the driver’s licence. Thereafter, state regulations lay down the systems and processes to be followed.
In the early 1990s when I was the Secretary for Medical and Public Health in Delhi, doctors and policemen made several suggestions. Pass a law, they suggested, that in case an accident victim’s body is not claimed on the spot, the organs may be harvested at a designated facility and used according to the registry of needy recipients. Looking at the number of accident cases involving young people, it will be easy to operationalise this strategy, particularly if it were coupled with the consent given on the driving licence.
Efforts have been on for decades to persuade the public to donate just corneas — far less threatening than retrieving kidneys, but to little avail. Aishwarya Rai has fluttered her gorgeous lashes on countless television commercials encouraging people to pledge their eyes (like her), but the supply remains woefully short. The Economic and Political Weekly writing editorially has referred to an annual demand for 1,50,000 kidneys while the transplants remain only 3,500. The well-intentioned 1994 Organ Transplant Act has clearly failed to prevent the illegal trade of kidneys because criminals would hardly present themselves before the authorisation committee to humbly seek permission.
The recent comments by the Chief Justice of the Supreme Court that the problem is with the implementation and not the law appear to address the enforcement angle. However, no less important is the fact that in a country where poverty drives people to sell their land, house, livestock, jewellery and even children, what is the value of a kidney for the love of money? Especially when it is possible to live perfectly well on its pair?
There is also the whole question of the emotiveness that surrounds death. Whether Indians exhibit their feelings more or less is not the point. In the Indian context, when funeral rites are given such enormous importance, few families would be willing to face the additional trauma of waiting for organ removal in a hospital setting. It is not that the idea of harvesting organs or the establishment of organ banks should not be pursued. The point only is that it will take a long time to convince families overwrought with grief to take decisions and get embroiled with hospitals and operation theatres for one minute longer than necessary. The consent on the driving licence is perhaps a good way of giving freedom to the individual, but also to the police to whisk away deceased accident victims for organ retrieval while preserving the body for the last rites.
Second, it is the fundamental duty of every local Government to build awareness among poor people that they might be compromising their lives by agreeing to donate a kidney. For starters, all construction and building contractors should be enjoined under municipal regulations to display a film about the harmful effects of kidney removal, for all hired labour. The message may yet percolate to a wider group of poor people — particularly those living in urban areas where nursing hospitals, homes and kidney seekers abound.