The law and the lacunae

THE Transplantation of Human Organs Act, 1994, which came into force in 1995, the year a major racket in kidneys was uncovered in Bangalore, intended "to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs." It establishes an institutional structure to authorise and regulate human organ transplants and to register hospitals that are permitted to perform transplants. It recognises, for the first time in Indian law, the concept of brain-stem death, thus opening the way for a programme of organ transplants from cadavers. It explicitly illegalises commerce in human organs, thus making kidney-for-cash transactions a criminal offence. It defines who can be a donor; it is in this respect that the Act has its most serious weekness (see main story).

The Act details the acts that can be construed as amounting to direct participation in or abetment of the organ trade. These acts are punishable under Section 19.

Section 19 of the Act states: "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 (i) inviting persons to supply for payment any human organ; (ii) offering to supply any human organ for payment; or (iii) indicating that the advertiser is willing to initiate or negotiate any arrangement referred to in clause (d)" shall be punishable with a term of imprisonment ranging from two to seven years or a fine not less than Rs.10,000 and extendable to Rs.20,000.

The Act thus outlaws paid-donor programmes. According to a leading nephrologist in Chennai, the Act also serves as a measure of legal protection for medical practitioners in the field of organ transplants. In legal terms, prior to the Act, the removal of a kidney from a person for any reason other than his or her own good constituted grievous hurt.

The Act, in effect, recognises two categories of live donors. The first is made up of near relatives, that is, a recipient's spouse, parents, siblings and children. The second category of live donors is specified in Section 9(3), which permits transplantation from a live donor who is not a near relative but is willing to donate his or her organ to the recipient "by reason of affection or attachment towards the recipient or for any other such special reasons" provided that the removal and transplant of the organ has the prior approval of the Authorisation Committee established under the Act.

Frontline's investigation shows that it is this provision in the law that provides the springboard for abuse.

To stamp out organ trade, and replace the paid-donor programme with a cadaver-based one, the Act recognises brain-stem death as "the stage at which all functions of the brain-stem have permanently and irreversibly ceased..." Brain-stem death must be certified by a board of medical experts to be set up under Section 3(6) of the Act.

A signal feature of the implementation of the Act is that no one is reported to have been prosecuted for its violation. That fact stands as testimony to the failure of the Authorisation Committee in each State to perform effectively its function as a watchdog. As for the Appropriate Authority, the authority vested with the power to take legal action against those involved in the continuing commerce in kidneys, it has simply not done its job.