Ever since transplantation of human organs from live donors became possible, every living person is a potential property. The most important component of property is its transferability. In a country like India where poverty is prevalent it is not surprising that an individual thinks of trading on his own organs to tide over his financial difficulties. The scope for exploitation of the poor and the reports of commercialization in the trade of human organs were weighty reasons enough for enacting Transplantation of Human Organs Act 1994. The Act authorizes donation only from amongst specified classes of relatives and if the donor is a non-relative, the consent of such a donor shall be evaluated by an Authorization Committee that the donation is ‘for affection or attachments towards the recipient or other special reasons’. The Act prohibits receipt of consideration for donation of any human organ. Pernicious, as the effect of commercialization of human organs could be, one cannot doubt that in its inception when the possibility of organ transplantation was made scientifically feasible, it could have been never thought of as objectionable. Organ transplant is indeed a significant sign-post that registers the advancement of medical care and reflects the symptom of a constant endeavour in medical research to prolong life and improve its quality.
The control mechanism to end commercialization and trafficking in human organs has operated between two extremes: the Authorization Committee invariably views every offer of donation of a non-relative with suspicion, while courts which have been called upon to examine the decisions of the committees have always seen the travails of the patient to be so overwhelming as to adopt a liberal approach with a view to save the life of a patient in the need of an organ. Perhaps the majority of cases knocking at the portals of court for reviewing the decisions of the authorization committees have come only in kidney transplant cases. Take a survey of all cases reported from various High Courts[1]. You will notice that courts have invariably come to the rescue of the patients and have rejected every instance of suspicion by Authorization Committees as not really relevant. The donor and recipient of non- relatives as servant and master, as poor and rich, as unrealistically charitably disposed and critically ill, respectively, have been found by courts as not sufficiently worthy reasons to doubt that the donor was consenting for donation only out of affection or attachment. It is conceded on all counts that despite the Act, there is a large scale illegal trade in donation of human organs for consideration. The concern seems to be more on the pitiable condition of a patient requiring donation but if an equal measure of concern about possibility of exploitation of donor exists, they have seldom been voiced through judicial pronouncements.
If we expect a non-relative donor to donate his organ without consideration, are we not expecting an unduly unjustified gratuitous altruism from a person who is prepared to undergo a suffering for donation? A patient who receives donation of an organ has a chance of improving his quality of life. He will probably lead a normal life. He will also begin to earn. If the recipient can be benefited, why should not the donor be benefited in some way? If the recipient is benefited materially why should not the donor also receive some material benefit?
There are so many other categories of donation which exist outside the regulation of the Act. Human hair is for a price. Human blood is also taken for a price. All legal regimes accept legitimate costs of carrying a fetus by a surrogate mother as tenable. Perhaps at the farthest end of the tether lies an offer of the human body for pleasure for a price by a sex worker. The person other than a spouse who gifts semen in IVF procedures is usually rewarded and so is a woman who gifts ‘productive eggs’.
The Human Transplantation of Organ Act is significant in that it does not prohibit donation of an organ by a live individual. It regulates it. In the manner of regulation it is admitted that the Act has not been able to do away with commercial exploitation, the presence of middlemen and the existence of a large black market. If all this must go, the first step should be to recognize that there is nothing illegal about fixing a price for an organ and expect the motive of a donor not merely to be gratuitous altruism but compensatory beneficence.
To expect a personal sacrifice only from a donor, while at the same time having profusion of sympathy for an ailing patient does not put the donor and the patient on an even balance. The approach is skewed in favour of the patient to the disadvantage of the donor. If kidney transplants are covertly done by skirting the provisions of the Act, it is time to bust the practice, not by prohibitions or incorporating more difficult parameters to assess the genuine willingness of a gratuitous donor but by bringing these activities out of the closet by introducing governmental supervision and funding to provide equity for the poor , who will get equal access to such transplants. A noted surgeon Amy L Friedmen[2] states that ‘it is appropriate that living donors, indigent or wealthy share in the tangible benefits of their ethical concern for others. Not doing so, effectively restricting the disadvantaged, is unreasonably disingenuous’.
[1] The most recent one is from Madras High Court by Justice V.Dhanapalan in Simon v Authorisation Committee dated 29.4.2008
[2] BMJ 2006, 7th October, Vol 333.
The control mechanism to end commercialization and trafficking in human organs has operated between two extremes: the Authorization Committee invariably views every offer of donation of a non-relative with suspicion, while courts which have been called upon to examine the decisions of the committees have always seen the travails of the patient to be so overwhelming as to adopt a liberal approach with a view to save the life of a patient in the need of an organ. Perhaps the majority of cases knocking at the portals of court for reviewing the decisions of the authorization committees have come only in kidney transplant cases. Take a survey of all cases reported from various High Courts[1]. You will notice that courts have invariably come to the rescue of the patients and have rejected every instance of suspicion by Authorization Committees as not really relevant. The donor and recipient of non- relatives as servant and master, as poor and rich, as unrealistically charitably disposed and critically ill, respectively, have been found by courts as not sufficiently worthy reasons to doubt that the donor was consenting for donation only out of affection or attachment. It is conceded on all counts that despite the Act, there is a large scale illegal trade in donation of human organs for consideration. The concern seems to be more on the pitiable condition of a patient requiring donation but if an equal measure of concern about possibility of exploitation of donor exists, they have seldom been voiced through judicial pronouncements.
If we expect a non-relative donor to donate his organ without consideration, are we not expecting an unduly unjustified gratuitous altruism from a person who is prepared to undergo a suffering for donation? A patient who receives donation of an organ has a chance of improving his quality of life. He will probably lead a normal life. He will also begin to earn. If the recipient can be benefited, why should not the donor be benefited in some way? If the recipient is benefited materially why should not the donor also receive some material benefit?
There are so many other categories of donation which exist outside the regulation of the Act. Human hair is for a price. Human blood is also taken for a price. All legal regimes accept legitimate costs of carrying a fetus by a surrogate mother as tenable. Perhaps at the farthest end of the tether lies an offer of the human body for pleasure for a price by a sex worker. The person other than a spouse who gifts semen in IVF procedures is usually rewarded and so is a woman who gifts ‘productive eggs’.
The Human Transplantation of Organ Act is significant in that it does not prohibit donation of an organ by a live individual. It regulates it. In the manner of regulation it is admitted that the Act has not been able to do away with commercial exploitation, the presence of middlemen and the existence of a large black market. If all this must go, the first step should be to recognize that there is nothing illegal about fixing a price for an organ and expect the motive of a donor not merely to be gratuitous altruism but compensatory beneficence.
To expect a personal sacrifice only from a donor, while at the same time having profusion of sympathy for an ailing patient does not put the donor and the patient on an even balance. The approach is skewed in favour of the patient to the disadvantage of the donor. If kidney transplants are covertly done by skirting the provisions of the Act, it is time to bust the practice, not by prohibitions or incorporating more difficult parameters to assess the genuine willingness of a gratuitous donor but by bringing these activities out of the closet by introducing governmental supervision and funding to provide equity for the poor , who will get equal access to such transplants. A noted surgeon Amy L Friedmen[2] states that ‘it is appropriate that living donors, indigent or wealthy share in the tangible benefits of their ethical concern for others. Not doing so, effectively restricting the disadvantaged, is unreasonably disingenuous’.
[1] The most recent one is from Madras High Court by Justice V.Dhanapalan in Simon v Authorisation Committee dated 29.4.2008
[2] BMJ 2006, 7th October, Vol 333.
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