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Tightening the screws

Every year, almost two lakh people in India need kidney transplants and there are only 4,000 people donating them,” reveals Narendra Saini, media co-ordinator of the Indian Medical Association in Delhi. And this discrepancy in demand and supply leads to cases like the deeds of “Dr Horror” Amit Kumar, accused of running an illegal kidney racket out of Gurgaon. The incident has raised many questions, including the efficacy of the Transplantation of Human Organs Act, 1994.

The government is now mooting the idea of amending the Transplantation of Human Organs Act. “Among the changes being considered are mandatory declaration that patients are brain dead by all intensive care units (ICU) of hospitals to help address the shortage of organs for donation in the country. (Brain death represents a state of irreversible damage to the brain.) The government will also roll out in a few months a National Organ Transplantation Policy in which emphasis will be given on cadaveric transplants, that is, kidneys obtained from dead people,” says a senior health ministry official. Under the new initiative, the government also plans to set up centres, which will co-ordinate organ donation.

Kidney transplantation is now an established standard therapy by the World Health Organisation. The advantage of the kidney is that it is a paired organ and it is possible to remove one of the kidneys from a live person. A typical patient lives 10 to 15 years after a kidney transplant. The quality of life also improves as the patient feels more energetic and has less food and fluid restrictions.

But over the years, the illegal kidney market has flourished. Right from the Eighties when kidney transplantation was established in India, doctors in large hospitals have been performing living unrelated kidney transplants with kidneys that were reportedly bought from the poor through middlemen. These kidneys were obtained from individuals who were genetically unrelated to the patients in need of the transplants. The early Nineties saw a series of media exposés on how rich patients were coming to India to buy kidneys, making it a thriving international trade.

Till the enactment of the Transplantation of Human Organs Act, 1994, there was no comprehensive legislation in the country allowing the removal of human organs from “brain dead” cadavers. The aim of the Act is “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 Act made trading in human organs a punishable offence and legalised “brain death,” making possible the removal of organs after proper consent. “The strength of the law is allowing brain death as death,” says S. Sundar, organising secretary of the Indian Society of Organ Transplantation, Bangalore.

But loopholes have led to the misuse of the law. “For a successful kidney transplant, blood groups have to be compatible and this leads to circumvention of the law,” says Dr Rajendra Pandey, consultant nephrologist at the SSKM Hospital in Calcutta. Pandey says that since the law provides for the donation of kidneys from near relatives, sometimes blood groups of near relatives do not match and this leads to a demand for kidneys from unrelated donors. The law defines near relative as “spouse, son, daughter, father, mother, brother or sister,” and this aspect of the law is causing a major controversy.

Section 9 subsection (1) of the Transplantation of Human Organs Act says, “No human organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient” and subsection (3) says that a person who is not a close relative of the recipient can also donate an organ for reasons of affection or attachment to the recipient. Says Sanjay Ghosh, a Supreme Court lawyer, “Obtaining an organ illegally could be done in a life and death situation since ensuring that the patient lives is more important than abiding by the law.” R.K. Sharma, secretary of the Indian Society of Nephrology in Lucknow, observes that “the government is considering second degree relatives for the donation of organs. While the current law is good, if it is made easy for people to donate organs there could be unrelated and professional donors creeping in and thus the new law would become a double-edged sword”.

“The object of the Act to prevent commercial dealing in kidneys has failed,” asserts Sardar Amjad Ali, a high court advocate in Calcutta. Ali mentions that for a non relative to donate a kidney, an authorisation committee has to approve the transplant but the supervision has been dismal, leading to a thriving kidney racket in the country. “The supervision committees have been negligent to the effect of hitting at the very core of the Act,” he regrets. He also emphasises that the law clearly states that without a licence being granted by the appropriate authority, removal of human organs cannot be done by anyone. “It is the engagement of the medical community in illegal activities that is causing the racket because transplantation needs medical expertise,” he alleges.

Joymalya Bagchi, an advocate at the Calcutta High Court, indicates that a video of the consent of an individual could be made, in addition to the written statement, during donation to avoid further legal complications. “There is a lack of transparency in the current dealings that is leading to the law being broken,” he asserts.

The medical fraternity, however, says the law is too stringent for transplantation to be carried out legally all the time. Says Narendra Saini of IMA, “The section mentioning that only close relatives can donate kidneys is too restrictive and needs to be widened. Also the provision for non relatives to donate kidneys for attachment or emotional reasons could be misused by any individual who could sell a kidney illegally.” Speaking of doctors like Amit Kumar, he says that he is not a registered medical practitioner and that the IMA “has time and again raised several medical issues with the administration without results. There are quack doctors performing organ transplants in unregistered hospitals all over the country and this is the core problem with the law being bypassed”.

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