THE Transplantation of Human Organs Act, 1994 is meant 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." The Central Act illegalises the buying and selling of human organs and makes cash-for-kidney transactions a criminal offence. The law establishes an institutional structure to authorise and regulate human organ transplants and to register and regulate, through regular checks, hospitals that are permitted to perform transplants. It recognises, for the first time in India, the concept of brain-stem death, paving the way for a cadaver-based kidney transplant programme.
The Act details actions that amount to direct participation in or abetment of the organ trade; these offences are punishable under Section 19 of the Act.
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 organs 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 organs; (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 with a fine not less than Rs.10,000 and not greater than Rs.20,000."
The Act defines two categories of donors. First, it permits a near relative, defined as a patient's spouse, parents, siblings, and children, to donate a kidney to the patient. Secondly, in Section 9(3) of the Act, live donors who are not near relatives but are willing to donate kidneys to the recipients "by reason of affection or attachment towards the recipient or for any other special reasons," are permitted to do so, provided that the transplantations have the approval of the Authorisation Committee, established under the Act.
The Act makes the offence of kidney trading non-cognisable. In other words, the police cannot look into complaints of kidney trading independently but must wait for a complaint to be made by the Appropriate Authority set up under the Act or by an officer authorised by it or by an individual who has given prior notice of not less than 60 days to the Appropriate Authority.
It is not clear whether Section 9(3) was deliberately meant - under pressure from special interests - to provide a loophole that could be exploited in practice, or whether the law-makers thought they were sympathetically making provision for donations from second-degree relatives and others who might act out of genuine love and affection or altruism.
But whatever be the reasoning and motivation behind the provision of a loophole, the practical operation of Section 9(3), combining with the non-cognisability of the offences to be prosecuted, has rendered the 1994 Act virtually unenforceable. (These features of the 1994 Act were critically analysed in the article "Kidneys still for sale" published in the December 26, 1997 issue of Frontline.)
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