Ethical and moral considerations

Published : Mar 30, 2002 00:00 IST

The buying and selling of human organs has traditionally been considered ethically and morally reprehensible. In the light of new reasoning, is there a case for a regulated kidney trade?

TRADITIONALLY, medical associations and human rights groups around the world have condemned the buying and selling of human organs. The World Health Organisation (WHO) declares the commercialisation of human organs to be "a violation of human rights" and "human dignity". In its 1991 document "Guiding Principles on Human Organ Transplantation," the WHO expresses concern over "the rise of commercial traffic in human organs, particularly from living donors who are unrelated to recipients." It lays down this Guiding Principle: "The human body and its parts cannot be the subject of commercial transactions. Accordingly, giving or receiving payment (including any other compensation or reward) for organs should be prohibited."

The World Medical Association (WMA) is an international organisation representing physicians and professional associations in about 70 countries, including India. Its mandate is to ensure the independence of physicians and to work for the highest possible standards of ethical behaviour and care by doctors at all times. As early as October 1985, at the 37th World Medical Assembly held in Brussels, the association condemned the "purchase and sale of human organs for transplantation" and called on "the governments of all countries to take effective steps to prevent the commercial use of human organs."

In a declaration on human organ transplantation adopted in October 1987 at the 39th World Medical Assembly held in Madrid, WMA recommended guidelines for physicians engaged in the transplantation of human organs. These guidelines prescribe for conflict of interest situations, ask the physician to be "objective in discussing the procedure, in disclosing known risks and possible hazards, and in advising of the alternative procedures available," and lay down that "transplantation of body organs should be undertaken only after careful evaluation of the availability and effectiveness of other possible therapy." The declaration concludes: "The purchase and sale of human organs for transplantation is condemned."

In a Resolution on Physicians' Conduct Concerning Human Organ Transplantation adopted at the 46th WMA General Assembly in Stockholm in September 1994, the professional body recorded "significant concern" over growing reports of physicians participating in the transplantation of human organs or tissue taken from the cadavers of executed prisoners or handicapped persons (whose deaths were "believed to have been expedited to facilitate the harvesting of their organs") or "the bodies of poor people who have agreed to part with their organs for commercial purposes" or "the bodies of children kidnapped for this purpose." Declaring the participation of physicians in such practices to be in "direct contravention" of the 1987 guidelines, WMA called upon all national medical associations to uphold these guidelines and asked for severe disciplining of the physicians involved in cases of "infraction."

In October 2000, at its 52nd General Assembly in Edinburgh, WMA came up with its most elaborate statement to date on human organ and tissue donation and transplantation. This has sections such as "Professional Obligations of Physicians," "Values," Organ and Tissue Procurement in its "Social Aspects" and at "the Institutional and Individual Levels," "Free and Informed Decision Making about Organ Donation," and so on. "In the case of living donors," the WMA statement requires, "special efforts should be made to ensure that the choice about donation is free of coercion. Financial incentives for providing or obtaining organs and tissues for transplantation can be coercive and should be prohibited." Further: "Payment for organs and tissues for donation and transplantation should be prohibited. A financial incentive compromises the voluntariness of the choice and the altruistic basis for organ and tissue donation. Furthermore, access to needed medical treatment based on ability to pay is inconsistent with the principles of justice. Organs suspected to have been obtained through commercial transactions should not be accepted for transplantation [emphasis added]."

Over the past two decades, the Transplantation Society, through its Ethics Committee, has consistently opposed paid organ donation, its position being: "organs and tissues should be freely given without commercial or financial profit." The American Society of Transplant Surgeons and professional associations in Europe, Canada and Britain have also condemned the organ trade.

This is at one level. However, with demand for healthy kidneys for transplantation far outstripping supply, an international debate has arisen on whether traditional ethical and moral values should be put aside and the sale of organs legalised. It is argued that society has a collective responsibility to save lives and therefore must set aside ethical notions such as altruism and the inviolability of the human body.

Proponents of paid donor schemes argue for a regulated market in kidneys such as the system adopted by Iran in 1997 (see the article on "The international traffic in human organs"). In an essay titled "The Body as Commodity: The Use of Markets to Cure the Organ Deficit" in the Indiana Journal of Global Legal Studies (Spring 1998, Volume 5, Issue 2), David Jefferies argues that such a market will be self-regulating. Rising demand will raise the price of organs in short supply, creating incentives for people to sell their kidneys. This in turn will ensure that enough organs are available to meet the demand. Proponents of the trade point to Iran, which has virtually eliminated kidney patient waiting lists.

This line of reasoning has extremely serious ethical and moral implications. Can we put aside fundamental and absolute moral principles so that a small percentage of the population can extend their lives by a few years? And more fundamentally, can we justify setting aside morality for non-moral purposes? These are some of the questions that ethicists have raised.

There are many ethical arguments against the organ trade. Our gut instincts tell us that the organ trade is morally reprehensible. There are of course many reasons for this repugnance. Not the least among them is the exploitation of the poor in these transactions, which make them ethically indefensible. We have seen how in India, despite a law banning kidney sales, the poor have become victims of this degrading practice. This is no different from the situation in other parts of the world where social inequality exists.

Organ Watch is an international NGO that tracks commercial transactions in human organs. In a speech to the United States Congress on June 27, 2001 ("The Global Traffic in Human Organs - A Report Presented to the House Subcommittee on International Operations and Human Rights," accessible at, Nancy Scheper- Hughes, a founding member of Organ Watch, presented her findings: "The growth of 'medical tourism' for transplant surgery and other advanced procedures has exacerbated older divisions between North and South, and between haves and have-nots. In general, the flow of organs, tissues, and body parts follows the modern routes of capital: from South to North, from third to first world, from poor to rich, from black and brown to white, and from female to male bodies... Illicit and exploitative organ procurement practises are protected by the invisibility and social exclusion of the world's population of organ suppliers and organ sellers - both living and dead - most of whom are poor and socially marginal." She further noted that in the desperate attempt to make money, many traditional notions about bodily integrity have been rejected and people have resorted to the humiliating option of selling a part of themselves.

Scheper-Hughes' last point leads into another very serious objection to paid organ donation raised by ethicists. Commercialisation of the body compromises human dignity, they argue. Organs are, in contrast to other possessions, not merely 'things' but a part of the integrity of a person. "Organ sales fall into the same category as prostitution, slavery and other transactions involving the human body," Dr. Philip Thomas of St. John's Medical College Hospital, Bangalore told Frontline, "and if you condemn one such transaction, you are committed to condemning the others."

That the human body is beyond value is a tenet that underpins numerous schools of thought, religious and secular. Therefore any attempt to put a value on the body or its components, no matter whether the donor is rich or poor, is a violation of this absolute and universal dictum. It will lead to a weakening of mutual human respect in general, with certain sections of the population being viewed as commercially exploitable. As T. Awaya, a Japanese sociologist, puts it: "We are now eyeing each other's bodies greedily as a potential source of spare parts with which to extend our lives."

The encouragement of altruism is a strong argument for the promotion of related live organ donation. A kidney transplant, while not entirely risk free, is a relatively safe operation. Although a donor may face some medical problems after the operation, this is compensated for by the sense of sharing and self-esteem. The donor also experiences the joys of gift giving, knowing that a relative has benefited greatly from this act of altruism.

It is quite the opposite when the donor is motivated by purely financial considerations. The exceptionally interesting study of donors in Iran where a legalised system of 'compensated gifting' is in place throws light on this aspect. In Iran donors view themselves merely as 'vendors'. The medical problems of the vendors interviewed in the study were compounded by their feelings of worthlessness. Vendors felt violated, depressed and anxious, and some even developed suicidal tendencies. Such a system tends to undermine altruism, a moral and social force in society at large.

AN example often cited in the literature on kidney trade ethics is that of a young Turkish father who wanted to sell his kidney to pay for the treatment of his sick daughter. The case, which happened in the early 1990s, grabbed the attention of the Western media. Are we right to deprive the man of his autonomy and the opportunity to help his daughter?, a section of the media asked.

This is an argument frequently heard in defence of the kidney trade. Individuals must have the freedom to choose what they wish to do with their body, argue proponents of the trade. Eliminating this choice through state intervention in the form of punitive laws is a violation of this freedom of choice, and the individual's autonomy. "A person who sells his kidney is desperate and often doesn't have anything else to sell. If you don't let them sell, they will commit suicide or turn to prostitution," Dr. S. Sundar, Director and Chief Nephrologist at the Karnataka Nephrology and Transplant Institute of the Lakeside Medical Centre & Hospital, Bangalore, told Frontline.

However, as Scheper-Hughes points out in her speech to the U.S. Congress, the social and economic context that the poor - who form the vast majority of kidney donors - live in makes the decision to sell a kidney anything but free and autonomous. All over the world, live unrelated donors are predominately poor and desperate for money. Economic pressures can coerce people into taking decisions that they will not otherwise take. The Turkish father's lack of autonomy stemmed from his poverty and desperate situation, not from being deprived of the 'right' to exercise his free choice. The freedom to sell his kidney did not add to his freedom just as the ban on his selling a kidney does not detract from his freedom, which depends on the socio-political and economic context in which he lives his life.

Even the staunchest libertarian will admit that individual autonomy must not exceed certain boundaries. For example, a right to kill is not sanctioned by most modern societies, partly because of the extremely negative consequences such a right will produce. In the same way, the argument can be extended to the 'right' to sell body parts, which, as we have seen, has proven negative effects.

The kidney trade raises important questions about the ethical responsibilities of doctors, set out in WMA statements over the past decade-and-a-half. Medical practitioners who support the trade argue that they have a responsibility to their patients, namely, to offer the best medical care possible even if it means helping them buy a kidney. This is a very narrow conception of the responsibilities of a medical practitioner. A doctor should not be blind to the social milieu in which he or she practises. As Dr. Urmila Anandh, a nephrologist at St. John's Medical College Hospital, Bangalore, explains: "Doctors have a special status in society. We are respected and considered figures of authority. We must give something back to society and stand up against issues that are palpably wrong for society."

A passive acceptance of female foeticide by doctors who argue that "it is going to happen anyway" is unacceptable, according to Dr. K.D. Phadke, paediatric nephrologist at St. John's Medical College Hospital and Chairman of the Foundation for Organ Retrieval and Transplant Education (FORTE). Doctors have a responsibility to protect certain social values. If not, they become accomplices in a commercial trade in human organs that thrives on the desperation of the poor and commodifies the uncommodifiable.

WILL a regulated organ trade be more morally acceptable? A.S. Daar, a transplant surgeon ("Rewarded gifting and rampant commercialism in perspective: Is there a difference?" in Organ replacement therapy: Ethics, justice and commerce, ed. W. Land and J.B. Dossetor, Springer, Berlin Heidelberg, New York, 1991) believes that it will. He argues that regulation of the kidney trade and not prohibition is the pragmatic position to take. He proposes, among other things, a donor's bill of rights, which will inform and protect sellers and ensure that they receive adequate postoperative medical attention and monitoring.

Dr. Sundar from Bangalore's Lakeside Medical Centre and Hospital uses a similar line of reasoning. He believes that exploitation exists because the trade is illegal and is forced underground. Citing the example of Holland, where prostitution is legal and regulated, Dr. Sundar argues that the kidney trade will continue whether it is legal or illegal, and the best way to ensure that the vulnerable in society are not abused is to regulate the trade and introduce standards.

These arguments neglect the reality that most of the world lives in. Nothing could be farther removed from Indian reality than the notion of introducing kidney trade 'standards' to protect vulnerable and poor vendors. Dr. Philip Thomas points out to Frontline that a kidney transplantation is a very simple operation and legalising the trade would turn transplantation into a "cottage industry," open to immense abuse. Even the best regulatory mechanism cannot disguise the fact that what is involved is a trade in human parts, and therefore morally and ethically reprehensible.

Scheper-Hughes argues that organ scarcity has been artificially created by vested interests. With the development of medical technology and expertise, the notion that life must be perpetuated at all costs, even at the expense of other humans, has gained ground. "In the United States alone, despite a well-organised national distribution system and a law that requires hospitals to request donated organs from next of kin, there are close to 50,000 people currently on various active organ waiting lists," observes Scheper-Hughes in her essay, "The Global Traffic in Human Organs," published in the journal Current Anthropology (Volume 41, No. 2, April 2000). "But this scarcity, created by the technicians of transplant surgery, represents an artificial need, one that can never be satisfied, for underlying it is the unprecedented possibility of extending life indefinitely."

If this is arguable, there can be no doubt that in India the scarcity of transplantable organs is artificial. Doctors point to the wastage of viable organs in hospitals and morgues. Members of FORTE, the Bangalore-based NGO that promotes cadaver-based kidney transplants, point to the enormous potential of such a programme in India. It is tragic that large numbers of young, healthy people are killed on Indian roads every day. FORTE estimates that two per cent of trauma victims admitted every day to trauma centres in Bangalore are potential donors. However, their organs are wasted through a lack of awareness, an absence of faith in the medical profession, and poor infrastructure. There are not enough trained organ-capture teams in hospital emergency rooms and Intensive Care Units (ICU). Rapid transport and basic equipment to preserve organs is also lacking.

PAID organ donation directly inhibits the development of a cadaver-based transplantation programme. A section of doctors do not agree with this. "This is a ridiculous claim," says Dr. Sundar. "If that is the reason, then why haven't there been more heart or liver transplants from cadavers?" He believes that the cadaver-based system has not taken off because people have not yet accepted the idea of brain death and organ donation after death.

It is certainly true that there are social and religious barriers to organ donation after death. However, these barriers cannot account for the neglect of cadaver transplants, which the 1994 Act makes provision for. "With a poor man's kidney available for the asking, and at a cheap price, why wait for a cadaver organ?" asks Dr. M.K. Mani in his article, "Making an Ass of the Law." "Think of what would happen if the unrelated live donor programme did not exist. The patients who take unrelated live donor kidneys are by and large rich and influential. If they had to remain on dialysis they would exert pressure on the Government to do something to establish cadaver transplantation."

The kidney trade has also led to a lack of trust within the system and this has further inhibited the development of the cadaver-based transplant programme, notes Dr. Philip Thomas. ICU physicians, neurosurgeons and neurologists often do not wish to contribute cadavers into a system that they know is corrupt, he observes. Moreover, families of cadaver donors tend to be suspicious of medical practitioners who they believe might stand to gain financially if they donate a loved one's organs.

The kidney trade has created an environment of corruption and commercialisation, which throws even the cadaver transplant programme into disrepute. New-fangled arguments for a paid-donor system cannot override its proven negative social and ethical consequences and implications. In the final analysis, poverty and deprivation sustain the trade in human organs. Perpetuating this trade will not only perpetuate poverty, it will subject the poor to additional exploitation, misery and humiliation.

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