The law is available to keep an eye over commercial dealings in human organs and to provide deterrent penalties for violation, but is it satisfactory?
The Union Parliament had enacted the Transplantation of Human Organs Act (the Act) in 1994, and the Act came into force in February 4, 1995. The main purpose of the Act is to regulate the removal, storage and transplantation of human organs for therapeutic purposes and to prevent commercial dealings in human organs. Several amendments to the Act have been proposed in 2008 to facilitate genuine cases, increase transparency in transplantation procedures, and to provide deterrent penalties for violation of the law.
The Act provides for transplantation from living or dead persons on various conditions being fulfilled. The requirements of consent of the donor himself while living, or of near relatives after his death, no remuneration for donation, allowing donation only for therapeutic purposes, empowering the authorisation committee to deal with various contingencies, power of investigation, registration of hospitals and its suspension are some of the progressive steps that the Act provides.
The definition of near relatives occurring in the Act seems to be narrow. It does not bring grandparents or second degree relatives in its purview. There is no agency or authority maintaining any database of persons who give sanction while living for donating their organ. Also, since Indian society is traditional and orthodox, many family members may not allow such donation and exhume the body without donating the precious organs. There is no penalty prescribed for such cases. Though, the Act provides for registration of hospitals eligible for doing such procedures, it nowhere provides how to deal with clinics and centres, carrying on such activities in contravention of all laws and guidelines and also, expected carefulness. The Act also nowhere provides how to promote cadaver transplant.
A major drawback of this Act is that it does not cover the transplant of tissues and blood.
Also, the requirements of forming an authorisation committee and conducting enquiry in some cases, before retrieving any organ, may lead to unnecessary delay. The requirements of forming such committee will be a time consuming task, coupled with the formalities of obtaining consent will render the whole object of enacting this law to go overboard.
The success or failure of any enactment can be judged by the readiness with which it is adopted by public. In this case, the Act has not only been ineffective in curbing commercial transactions in organ transplant, but it has also led to many genuine cases being thwarted because of its many technicalities. Though the provisions are meant to strengthen and safeguard transplantation, it has led to troubles and hurdles for some genuine cases and allowed fake or commercial cases to go forward without any check.
Transplantation is a treatment of choice, which a person adopts for a better living. Nevertheless, due to lack of donors, his fate is left to the mercy of several intervening factors. Where a donor is available, there are many legal hassles to be addressed before the transplant can take place. At present, as against a demand of 4.5 lakh patients needing organ transplants annually, India has conducted only 35,000 organ transplants in the past decade.
Many a times, due to lack of information and the absence of information avenues, the ailing person solicits advice from all or any agency or person he can rely on. It leads to misinformation, loss of vital time and money too. Many genuine patients are misled by incompetent quacks.
The stringency of the laws sometimes also poses a problem in carrying out transplantation legally. Due to the dismal amount of resources appropriated to the health sector, the problem is further aggravated.
There is a need to develop a nationwide protocol for all sorts of transplants. It should hold the database of all prospective donors and donees. Also, it should maintain the list of all agencies involved in the whole process, be it medical practitioners, hospitals, organ banks, mortuaries from where many vital organs can be extracted for transplant on short notice, police members involved, and other administrative agencies involved.
Dr. Balbir Singh Chairman of Cardiology, Medanta The Medicity Hospital, Gurgaon, Haryana, India
The authorisation committee has an important role to play. At present, the committee is very strict. If they follow the rules that have been set, it is not easy to get an approval for a transplant. Not only medical people, but lawyers, too, are part of the committee to take a correct ethical decision.We trade off one thing for the other. If on one hand, we put our foot down that due to ethical issues, we will not allow selling of organs; on the other hand, what we also have is a process in place, which is extensive and friendly for the society.
However, when a patient needs an urgent transplant and a donor is readily available, the committee calls an urgent meeting to take care of legal issues in emergency cases.
Presently, kidney rackets and fake blood banks are rampant. I recall a case in which even some police officials were also involved in an organ-selling racket, discovered in Gurgaon. Even though the law, according to me, is very strict; this issue still remains at large. Ordinarily, a doctor would never indulge in such practices because, if caught, his licence and degree will be revoked and he will lose his source of livelihood.
Further, the government should take the initiative to provide reliable information regarding all procedures and formalities. Since lives of millions depend on it, the government should ensure that this is taken up on a priority basis to satisfy the needs of all the persons involved in this. Only then can the medical fraternity be held responsible and accountable for all the happenings in this regard.
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