In light of the ongoing illegal kidney trade scandal, CNN-IBNLive had a debate on the question of organ trade. Some interesting points were made by the anchor in support of legalizing it including the right to life of the recipient. Several of the panelists held a contrary view. Reading the transcript, I was intrigued by some of the Q&As between the anchor Sagarika Ghose and Colin Gonsalves. Here are some excerpts: “Ghose: But what about surrogate mothers? They usually rent out wombs for money. Gonsalves: That is not donation of an organ. In the case of surrogate mothers, the organ is taken out and transplanted in someone else’s body. The hospitals are registered both for removal and transplantation simultaneously. On the contrary, there is seven years of imprisonment for sale of organs in this country. …Why couldn’t a person dying of kidney failure go to the open market and purchase it? To which Gonsalves replied saying that if someone needs an organ and his friends and family are not willing to step forward then it is too bad for him. Ghose: But don’t people buy blood? Gonsalves: Blood donation is not like taking a part of your body away. It does not affect you that severely.” There are two questions here. (1) Does an egg, sperm or blood constitute an organ? The definition under the Transplantation of Human Organs Act, 1994 states: “”human organ” means any part of a human body consisting of a structured arrangement of tissues which, if wholly re- moved, cannot be replicated by the body”. Egg, sperm and blood could not be termed ‘structured arrangement of tissues’, so he is right that they would not constitute organs. However, with regard to blood, its status has nothing to do with severity. (2) Does the time gap between removal from the donor and transplantation affect the legality of the procedure? The relevant provision is cited below: “Punishment for commercial dealings in human organs: Whoever (a) makes or receives any payment for the supply of, or for an offer to supply, any human organ; (b) seeks to find a person willing to supply for payment any human organ; (c) offers to supply any human organ for payment; (d) initiates or negotiates any arrangement involving the making of any payment for the supply of, or for an offer to supply, any human organ:, (e) takes part in the management or control of a body of persons, whether a society, firm or company, whose activities consist of or include the initiation or negotiation of any arrangement referred to in clause (d); or (f) Publishes or distributes or causes to be published or distributed any advertisement,– (a) inviting persons to supply for payment of any human organ; (b) offering to supply any human organ for payment; or (c) indicating that the advertiser is willing to initiate or negotiate any arrangement referred to in clause (d), shall be punishable…” Though he is right that organs are not stored except for very short periods owing to technical reasons, there is nothing here to suggest that the sale would become legal if only the entire procedure were to be executed in one go. The moral arguments against it were that the thought of people selling their organs is quite repugnant and if allowed to do so, only the poor would be selling their organs for money. The first is a matter of sentiment (imagine donors hawking their kidneys on eBay!) but the second is debatable. Are those selling them for money going to suffer more than those donating it currently for altruistic motives? If not, how is the ban going to help the poor? Ghose did not however ask these questions. Today’s HT has an op-ed by Lalita Panicker on the same issue. She notes a number of details of this sordid affair but strangely ends up berating the government for not raising healthcare spending. Huh? I am still trying to figure out what the connection is.
The Organ Trade Debate on IBNLive
Further reading
Speakers and Schedule of the Fourth Edition of the Court and Constitution Conference, 2023 at NALSAR University of Law, Hyderabad.
[As part of our New Scholarship section, we have been inviting discussants to respond to the public law-themed articles featured in Volume 5 the Indian Law Review. You can access all the posts in...
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Dear Dilip, I agree with you that the sympathy for the organ-sellers as distinct from the donors is misplaced. Would you agree with the Government’s moves to revise the norms as in this TOI report
http://timesofindia.indiatimes.com/India/Swapping_of_organs_to_be_made_legal/articleshow/2734512.cms
Dear VV,
It is a good step forward as it increases the chances of finding a matching donor. Being a swapping program, success in terms of curbing organ trade will probably depend on the profile of organ-seekers from foreign countries (I understand that this racket catered primarily to them). Did they come to India because it is cheaper as newspapers are suggesting or because they cannot find donors (presuming their countries do not have a national/statewide organ donation program) or because the long waiting list for organs in their own countries and/or the failure to find a match made them look for other avenues? I suspect it is the last one. Many of these countries, as was mentioned in the debate, depend largely on cadaver transplants though there may not be a bar on living people also from donating (see for example the US program http://www.organdonor.gov). If these folks are able to get their near relatives to donate but there is no match, only in such cases are they likely to find the Indian system useful. I do not know how far that is the case; that ought to be a concern because in countries with national programs, given that there is no absolute need for near-relatives to donate in order for a person to receive an organ, it is possible that such a practice is not widely prevalent which raises the question: are these people who look to India going to be able to find a relative willing to donate? If the answer is no and such people are looking to solve their problems only through money, the program may not prove very effective after all.
wouldnt it also help to consider a system of ‘presumed consent’ of a person to donate his organs after death? Britain is considering such a system where unless a person actively ‘opts-out’ of the organ donation register, it will be presumed that s/he consents to her organs being harvested after death. it is a ‘soft’ presumed consent, where relatives have a limited right to object.
the draft rules by the ministry are available here.
Dear Tarunabh,
Thanks for the comment and links. It is a good idea though a trifle premature in the Indian context. As has been pointed out by many, the idea of organ donation upon death is still to gain acceptability at large, a situation quite different from the one in the UK as stated in that BMA article.
As I understand it, a ‘soft’ consent would involve the relatives not being asked for consent but merely being informed about the dying man/woman not opting out of donation though an exception is made out when ‘it is apparent that to proceed with the donation would cause major distress to the individual’s relatives’. That exception essentially allows the family to veto the idea and the question in that case is whether it would be any more effective than informed consent.
One concern is that implementing such a measure may raise law and order problems. When someone dies, it is a sensitive moment for the physician and the hospital as well because emotions can run high and the institution and the doctor not only get a bad rep but are sometimes blamed for the death. Besides, it is not just the immediate family but the patient’s entire parivar who end up staying on or near the hospital premises commiserating one other. At such a time, it would be quite ill-advised to do something as intimate as harvesting organs against the family’s wishes (in theory, family decisions are supposed to be exercised on the basis of what the patient him/herself would have wished under those circumstances but particularly in the absence of any written testament, I do not believe that these distinctions are sufficiently developed or recognized in the Indian context)and may lead to confrontation and even a riot (if the cops are called to defuse the situation, they sometimes end up brokering compromises based on the exigency that may actually be in violation of any such law). So in practice, it is questionable whether presumed consent will turn out to be superior.
dear dilip
i agree that the indian context may presents certain difficulties (although we sometimes concede this point too easily, and with perhaps a hint of elitism – i am increasinly unsettled by stereotypical assumptions about ‘the people’ that our judges and politicians make as an excuse for paternalistic restrictions on liberty – but that is a matter for another post). coming back to presumed consent, at least the idea needs to be thrown into the field. even in the UK, everyone assumed that the majority must oppose the idea till surveys were done.
i agree that the ‘soft’ness of the consent makes it weak, but it may still be better than nothing.
i agree with your implementation problems – they will certainly arise.
Dear Tarunabh,
You are right about the paternalistic notions of our political leaders. It is a pity that there are no libertarians across the political spectrum.
Coming to this issue, you are right that presumed consent may still help particularly, I think, if doctors are encouraged to get actively involved in the effort. For example, with respect to family planning promotion, it is often seen that the main source of aggressive promotion/forceful exhortation of tubectomies when someone has delivered a third child comes from the delivering obstetrician. This can border on coercion – if they are hesitant, they are repeatedly told to get it done and even rebuked should they decline the advice. This is of course at variance with what we understand about how physician-patient interaction should be conducted but it is quite probable that their efforts do play some role in the couples’ eventual choice. Likewise, a campaign to enlist doctors in such an effort may yield some dividends as they may use their position to advocate for this cause.
Food for thought:
http://anirudhbhati.com/2008/02/08/legalize-organ-trade/