Tamil Nadu decides to streamline the implementation of the Transplantation of the Human Organs Act, 1994, but the proposed measures may be inadequate.
ON April 6, the Tamil Nadu government announced a series of measures to "streamline" the implementation of the Transplantation of Human Organs Act, 1994. The vast majority of doctors, academics and non-governmental organisations (NGOs) who are concerned with the issue in the State, however, are of the opinion that the measures will "steam-roller rather than streamline" the implementation of the Act.
The Transplantation of Human Organs Act is 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 can perform transplants. It recognises, for the first time in Indian law, the concept of brain-stem death, thus paving the way for a programme of organ harvesting from cadavers. It makes kidney-for-cash transactions a criminal offence.
The Act defines a legally acceptable donor; it allows, by means of Section 9 (3), a person not related to the recipient to donate his or her kidney for reasons of "affection or attachment towards the recipient", with the approval of an Authorisation Committee. This clause has turned out to be the biggest loophole, in the law. It has allowed thousands of cash-for-kidney transactions to take place in Tamil Nadu, which is known to have a thriving kidney trade, and elsewhere in the country.
In Tamil Nadu, proof of a flourishing trade in kidneys has come periodically from the media, academics, NGOs and the general public since 1997 (following the publication of the Cover Story titled "Kidneys still for sale", in Frontline issue of December 26, 1997). Numerous instances of sale and the existence of brokers and a donor-agent-doctor-hospital-patient nexus are well documented. For instance:
* S. Subash (35) and R. Govindan (37) from Pallipalayam in Tamil Nadu's Namakkal district travelled to Chennai to convince the Authorisation Committee about the emotional bonds between them and people they had never met earlier (neither have they seen these people since the transplantation); they got Rs.35,000 each for the "donation".
* Thambu of Namalwarpet in Chennai "donated" a kidney to a person whom he met outside the Authorisation Committee's office for the first time, while waiting to convince the committee about their "decade-long emotional bondage". Fearing the wrath of his wife for selling his kidney, Thambu even agreed to the suggestion of the agent to hire a woman to pose as his wife (for a fee of Rs.2,000) before the committee.
* Prema and Lakshmi in Chennai "sold" their kidneys without even appearing before the committee.
* A doctor allegedly promised a donor Rs.1.5 lakhs for his kidney but paid him only Rs.45,000 after the surgery. The donor also alleged that no permission was taken from the committee for the "donation". The matter is pending before the State Human Rights Commission.
* Dhileep was allegedly cheated by middleman Mahalingam, who took Rs.17,000 for arranging a kidney but did not deliver. Police investigations showed that Mahalingam was part of a doctor-hospital-patient-donor nexus.
* As many as 305 people of Villivakkam sold their kidneys. Thereafter their income declined by 67 per cent, 75 per cent of them are still in debt, and the health of 83 per cent of them has deteriorated.
* Middlemen Moorthy, Fazilbai, Thirumalai and Bhaskar regularly supply a stream of "donors" to some hospitals in Chennai.
* Villivakkam, Otteri, Mylapore and some Chennai suburbs and with their slum clusters have thousands of people with just one kidney, after having donated the other on the grounds of "emotional bonds" to people they had never seen before the surgery.
Yet, the Authorisation Committee is "unable to find proof" of any "kidney sale" in Chennai. Committee chairperson Dr. C. Ravindranath says: "We are aware that a racket is on in the State. But the question is how to establish proof."
The committee's plea of helplessness appears to be weak considering the fact that when the media, particularly a host of television programmes (for instance, those by the Ekoch FilmProduktion from Germany and Kurtis Film from the U.S.), have exposed the kidney racket in Chennai, with extensive footage of, and interviews with, donors, brokers, recipients and even doctors.
IN the "absence of proof of kidney commerce in the State", the State government has decided to streamline the Authorisation Committee's working and to make the procedures easier for potential recipients and unrelated donors in remote areas of Tamil Nadu by setting up two more centres for Authorisation Committees to function - in Madurai and Coimbatore. Also, as 20 to 30 cases come before the committee for approval every week (it meets once a week at the Government General Hospital, Chennai) and "it is very difficult to verify the authenticity of each case", the government has decided to seek the help of NGOs to verify the information given by each recipient-donor pair. According to Health Minister S. Semmalai, these two processes are to begin in May.
Although the government has not given out the details of the plan, according to senior nephrologist Dr. M.K. Mani of Apollo Hospitals, Chennai, who has been a strong voice against live unrelated donations, the measures will not solve the problem of kidney commerce in the State. According to another senior doctor, with an increase in the number of centres to approve "emotional donations", the numbers of such donations will increase and the agent-hospital-donor nexus will only get decentralised. Also, according to him, involving NGOs in the process to verify documents may lead to more problems as it would involve questions such as the credibility of the NGOs.
But, according to Dr. Ravindranath, who admits that the system is faulty and the addresses given by many donors are false, the latest measures will take care of the problem of verification of donors.
According to Dr. Ravindranath, there are 45 approved transplant centres in the State, including 28 in Chennai. The committee meets once a week and considers some 30 applications. "It is impossible to verify the claims in each case and it is difficult to establish if money is involved in every donation," he says.
To this, Dr. Mani says that the job of the Authorisation Committee is to prevent commercial deals in organs, as mandated by law. If it is unable to do so, then there is every reason to scrap Section 9(3) which allows for live unrelated donations on emotional grounds. According to him, every live unrelated kidney donation is bound to be commercial in nature and exploitative of the poor.
According to Dr. George Kurian of the Christian Medical College Hospital, Vellore, if the government really wants to prevent the play of commerce in organ donation, it will be able to do so - with requisite will.
"An example of an Act not intended to be implemented is the Transplantation of Human Organs Act, 1994," says Keshava Rao, Professor, National Law School of India University, Bangalore. He says there are three petitions pending before the Supreme Court that seek to scrap Section 9(3).
Interestingly, Karnataka, where the lid was blown off the rampant kidney commerce in 2002 (Frontline, April 12, 2002) and the Authorisation Committee reconstituted, saw the applications for live unrelated donations before the Authorisation Committee come down to a single digit since then, against some 1,000 in Tamil Nadu during the same period.
According to Dr. Sunil Shroff of the MOHAN Foundation which promotes multi-organ donation, who is an advocate of the cadaver-based programme, the Tamil Nadu government must consider how the Karnataka government busted the kidney rackets in that State by means of police investigations. In Karnataka, the system was cleaned up and the Authorisation Committee made to release data on donors and recipients approved for live unrelated transplants (Frontline is in possession of the complete data set) thanks to the efforts of Dr. H.R. Sudarshan, who spearheaded the expose.
In contrast, in Tamil Nadu, according to the Department of Medical Education, which is meant to document all the activities of the Authorisation Committee, no time-series data are available even with regard to the names, addresses and occupations of the donors and recipients that came up before the panel since the implementation of the Act in 1995 (Frontline, September 13, 2002). According to Dr. Sunil Shroff, the kidney trade not only exploits the poor, but also effectively suppresses a cadaver programme. Ironically, it is to cater to fewer than 3 per cent of the patients who need kidneys (97 per cent of the end-stage renal disease, or ESRD, patients die unable to afford dialysis or a transplant) that such an exploitative system is being sustained.
According to Dr. J. Amalorpavanathan, Transplant Coordinator at the Government General Hospital, Chennai, at least one case of brain-stem death occurs every week in the hospital. Between eight and ten brain-stem deaths take place in the intensive care units of Chennai hospitals at any point in time. But, according to Dr. Shroff, organ donation takes place hardly in 19 per cent of brain-stem death cases. This is because of problems, including a shortage of approved specialists to certify brain-stem death and lack of facilities to reach trauma patients to hospitals in time to harvest organs. "If the government really wants to help ESRD patients, it should take measures to address these problems and put a cadaver programme in place," he says. Dr. Mani recommends a preventive care programme with focus on diabetes and blood pressure, the main causes of EBRD.
A senior nephrologist who prefers not to reveal his name in this context, says that if the government is serious about cleaning up the system and ending kidney commerce, as mandated by the Act, it must first make the functioning of the Authorisation Committee more transparent, making it accountable and responsible for every decision taken, and breaking the donor-broker-doctor-hospital nexus. "What more proof does the government need for the prevalence of a trade in kidneys than there already is?" he asks.