BODY AS A COMMODITY: A COMMENT ON ORGAN TRAFFICKING By- Swetha A & Rithika SS
BODY AS A COMMODITY: A COMMENT ON ORGAN TRAFFICKING
Authored By- Swetha A
IV BCOM LLB (Hons)
School Of Excellence in Law
The Tamil Nadu Dr. Ambedkar Law University, Chennai-600113.
Mail: ajoswetha2001@gmail.com
Co- Authored By- Rithika SS
IV BCOM LLB (Hons)
School Of Excellence in Law
The Tamil Nadu Dr. Ambedkar Law University, Chennai-600113
Mail: ssrithika1311@gmail.com
Abstract
“Organs are too precious to be futile”
We are no
more in a century of superstition, where it is considered to be a sin to bury a
dead body without the organs in it. Since human trafficking has been zoned out
human trafficking for swindling their precious organs is ruling the underground
world. To be more accurate, there’s no need for trafficking why because
innocent people are well prepared to vend themselves to quench the demands of
their creditors. This illegal process of organ trafficking between donors and
recipients is eased by the presence of middlemen. The aftermath comes with
regression and exhaustion since the major share of consideration given to the
donor is parted by the middleman and the victim is left with drained
well-being. It becomes much laborious task to leap from dawn to dusk without an
organ inside with depleting health and wealth. Last but not least, people got
rid off their kidney but not their debt. Positive measures like encouraging the
people to donate organs will be more pertinent in this regard than the punitive
measures. Perhaps it’s a blessing to be ceaseless through organ donation than
to bury a corpse with organs alive in it.
Lately, India is becoming one of the
perfect site for medical tourism. People in need of any kind of medical
treatments stop at our airports to get themselves cured. Though, it represents
a positive development in our Medical field, the other side of coin points out
the underground markets functioning to satisfy the needs of these foreign
patients at the cost of living citizen’s life. The most well-known crime that
occurs in these markets is “organ trafficking or Organ trade”. Needy and
downtrodden community are ready to spare their life to settle their debts.
Eventually, middlemen swindle the lion’s share of money and poor donors are
left helpless with meagre share and feeble physique and psych. This is not done
just like unplugging an organ from one person and plugging it into another, it
involves the participation of a middleman. Thus, people from different
countries or from the domestic country, who are waiting for organ
transplantation are connected with donors via one or more middleman.
Organ trafficking
Trading of human organs and tissues, usually
for transplantation, which occurs out of track and which gives huge profit to
intermediaries is known by the term organ trafficking. This crime is contagious
and has attracted the attention of many international institutions. Organ
trafficking consists any of the following activities:
a) Removing organs from living or
deceased donors without valid consent or authorization or in exchange for
financial gain or comparable advantage to the donor and/or a third person;
b) Any transportation, manipulation,
transplantation or any other use of such organs;
c) Offering any undue advantage to, or
requesting the same by, a healthcare professional, public official, or employee
of a private sector entity to facilitate or perform such removal or use;
d) Soliciting or recruiting donors or
recipients, where carried out for financial gain or comparable advantage; or
e) Attempting to commit, or aiding or
abetting the commission of, any of these acts[1]
Trafficking in persons for the purpose of
organ removal is the recruitment, transportation, transfer, harboring or
receipt of persons by means of threat or use of any other force or other forms
of coercion, of abduction, of fraud, of deception, of the abuse of power or of
a position of vulnerability, or of the giving or receiving of payments or
benefits to achieve the consent of a person having control over another person,
for the purpose of the removal of organs[2].
Why is there a need for middleman in organ transplantation?
In 2016, JP Nadda, then Union health
minister, said in Lok Sabha that “against the demand of 2 lakh kidneys, only
6,000 were available. Similarly, against the demand of 30,000 livers only 1,500
were available and against the demand of 50,000 hearts merely 15 were available
across the country”. Every year in India, 100,000 people are in need of
corneal transplant, but in reality, we are able to do only about 25,000 corneal
transplants. Universally, organ donation is voluntary. Two voluntary systems are
as follows:
• Opt in: Donor gives consent for organ
donation
• Opt out: In this system, anyone who has not
refused for organ donation is considered as a Donor.
In India, we have only the Opt-in system,
while many western countries practice the Opt-out system
According to the Multi Organ Harvesting Aid
Network Foundation (MOHAN foundation), a Chennai based NGO working on organ
donation, only about 3% of the demand is met. The needs for organ
transplantation is not satisfied and as a result patients die due to non-availability
of organ at right time. Thus, they rely on middlemen to monetarily connect with
a stranger and thereby it enters an illegal market.
On the other hand, people who got struck in
the debt-loop, decides to donate their organs for a predetermined amount. They
are approached by middlemen and medical brokers with an offer to donate organs
for money. Thus, 96% of illegal transplantation is to pay off debts that came
from food, household expenses, rent, etc. Ironically, organ donation doesn’t
pave them a way out of debts-loop because most of the money involved in the
transaction is absorbed by the middlemen and a less than a penny is only
available to the donor. Thus, they fall back into the vicious circle of poverty
and debt.
Red market
The place where the participants of
illegal transplantation, such as recipient, donor, middlemen, meet is called
Red market. Usually, organ trafficking occurs in three ways, they are:
- Organs are removed by
way of force from the donor’s body
- Organs are removed with the consent of
the donor for a consideration
- Medical practitioner will remove the organs
without the knowledge of the donor.
In many cases, the poor healthy
donors from slum areas are more active in Organ trafficking. For instance in
kidney transplantation, after interactions between medical brokers and surgical
entrepreneurs, a region will be fixed as “kidney zones” which comprises of
persons facing extraordinary debts. According to UAE surgeon, kidneys from
Bombay are cheaper and less safe than kidneys from Chennai. That’s why India is
considered to be hub of organ trafficking for the buyers from Europe, the
Middle East, Japan, North America, Southeast Asia and Australia. Scott Carney,
journalist and author of “Red Market” have mentioned in his book that “all in,
I figure, I’m worth about $ 2, 50,000”. His acquaintance with an illegal market
helped him to know his worth. From top, his hair to all ligaments joining his
joints has separate price and can be traded in Red market. Each organ is priced
differently according to the demand and supply in the market.
Side effects
Organ Transplantation by illegal
means does harm both the donor and recipient both legally as well as
physically. Donor risk their life for the sake of money and turn their life even
more to a worsened situation. According to a study, 50% of the kidney donors
faced exhaustion and anxiety after donation. They all commonly complained of
‘half man syndrome’ which means they feel emptiness in their abdomen and that
increases the fear of losing the other one. They also diagnosed of less sexual
potency after kidney donation. The reason for such serious issues is lack of
post-surgery treatment. Many are not left with money for aftermath treatment
because the consideration they received will be mostly used to pay off debts.
Paradoxically, those poor donor have to run again for their livelihood, with
one kidney.
At times, even the recipient is also
not benefitted from such illegal organ transplantation. Already lakhs and lakhs
will be spent by the patients for the organ, middlemen and medical expenses.
So, they ignore the Immunosuppressant therapy[3]
which is necessary to prevent the rejection of transplant by the recipient’s
body. They are not able to sustain the long-term Immunosuppressant therapy due
to time and cost factors. Thus, it results in another kidney failure in spite
of high-cost transplantation. Additionally, some young nephrologist ignore the
tissue mismatches and go ahead with transplantation surgeries which even
results in kidney failure.
Hike in organ trafficking
Though organ trafficking is prevalent
since 1980 we can witness a hike in it in certain periods. One such hike
occurred when Tamil Nadu was thrashed by tsunami in 2004. “In Chennai, the
victims of human trafficking for organ removal are largely part of the fishing
communities who lost their homes in the 2004 tsunami. The traffickers began to
target hundreds of people after tsunami with good offers. Brokers even provided
a home where such organ donor could reside temporarily following surgery. This
also helped brokers to attract more individuals towards the sale” said the
study conducted by Coalition for Organ-Failure Solutions, a non-profit
international and human rights organization[4].
One more factor which added fuel to fire is job loss due to Covid-19. That
group of people who were already uneducated, uninsured, unemployed are now even
more desperate to take up offers which they shouldn’t take[5].
Since people has been rendered helpless to pay their debts and maintain their
family, they opted to sell their kidney to accomplish their manly duties in
vain. In the recent years organ brokers started using social media as a
recruiting platform for the red market.
Legal ways to donate organs
How organ donation can be done legally?
Transplantation of Human Organs Act,
1994 is the only legislation in India to guide organ donation and prevent organ
trafficking. It’s crucial for us to know about donor and recipient before
entering into the procedure. Donor is a person who donates his organs for
therapeutic purpose[6]. Recipient
is a person in whose body organ from donor is transplanted[7].
Donors
Organ donation can be done by both
living human beings and dead and they are known as living donors and deceased
donors respectively. Organs can be donated from the body of a deceased, once
authorisation is obtained. Authorisation can be obtained in the following ways:
1.
Authorisation can be obtained from the donor itself before his
death or from his near relative[8].
2.
If the donor had in writing in the presence of two or more
witnesses, unequivocally authorized at any time before his death, the removal
of any human organ or tissue for therapeutic purpose, the person in lawful
possession of the dead body of the donor grant to a registered medical
practitioner facilities to remove that human organ or tissue unless he has
reason to believe that the donor had revoked the authorisation subsequently[9].
3.
Where neither such authority is given by a person before his death
nor any objection was expressed for removal of human organs or tissues from his
body, the person lawfully in possession of the dead body can authorise the
removal of human organs or tissues of the deceased person for therapeutic
purposes unless he has any reason to believe that a near relative of the
deceased has objection to do the same[10].
Living donor
·
When it comes to deceased donation there is no complicated
restriction but in the case of living donation, donor should be a near relative
i.e. spouse, son, daughter, father, mother, brother, sister, grandfather,
grandmother, grandson or granddaughter to the recipient[11]. Living donation can
also come from a person who is not a near relative but who is a good friend who
wishes to donate organs out of love and affection which is known as altruistic
donation. Such donors who is not a near relative should get the approval of
authorisation committee for organ donation.
·
In B.L. Nagaraj and ors vs.
Kantha and ors[12], the high court has held that, there is no provision in the act
which prohibits the person who is not a near relative by definition from
donating his kidney. The relationship of donor with the recipient, period of
acquaintance and the degree of association, reciprocity of feelings, gratitude
and other human bonds perhaps some of the factors which would sustain
‘affection and attachment’ between two individuals. The committee has to ensure
that human organ has not become an article of commerce. The main thrust of the
act is against commercial dealings in human organs.
·
A near relative should get the permission of doctor in charge of
the transplant before removing or transplanting organs or tissues. If in case,
donor or recipient is a foreign national, prior approval of authorisation
committee is essential before removing or transplanting organs or tissues.
Organ donation in the case of brain death
When brain stem is permanently
damaged, the patient is declared brain dead as the person cannot regain
consciousness or breathe. The definition of brain death states that there is
complete cessation of cerebral function wherein the proximate cause is known
and is considered irreversible. The American Association of Neurology (AAN) has
defined brain death with three cardinal signs: cessation of the functions of
the brain including the brainstem, coma or unresponsiveness, and apnea[13].
Brain stem is a part of a
central nervous system having centre for consciousness and respiration. Heart
will continue to function for 36 to 72 hours on life support[14]. As the
blood supply is maintained to the vital organs during this period, the organs
can be taken from the dead with the consent of relatives. In case of brain stem
death, organs or tissues can be removed from the body of the deceased, only
when such death is certified by a board of medical experts consisting of:
i)
The registered medical practitioner in charge of the hospital in
which brain stem death has occurred.
ii)
An independent registered medical practitioner, being a specialist
to be nominated by the registered medical practitioner as mentioned above from
the panel of names approved by the appropriate authority.
iii) A neurologist or a
neurosurgeon to be nominated by the registered medical practitioner as
mentioned in clause (i) from the panel of names approved by the appropriate
authority
iv) The registered medical
practitioner treating the person whose brain stem death has occurred[15].
Minors in organ donation
i)
To understand the part of minors in organ donation, we should
travel back to the legislation which was made in 1994. Originally, the act
contained that, “a donor means any person not less than eighteen years of age”[16].
Later the amendment which was made in 2011, diluted the rigidity of the
provision and added that, no human organs or tissues shall be removed from the
body of the minor before his death for the purpose of transplantation except in
the manner as may be prescribed[17]. The Transplantation of Human Organs and
Tissues Rules 2014 mention that living organ or tissue donation by minors shall
not be permitted except on exceptional grounds to be recorded in detail with
justifications prior approval of the Appropriate Authority and state government
concerned.
ii) The court’s observation
came while hearing, through video conferencing the urgent plea of a 17 year old
girl, seeking court’s permission to donate a part of her liver to her father,
who is suffering from advance stage of liver failure due to disease known as
Cirrhosis of liver. To ascertain the potential required for the procedure,
Justice Sachdeva ordered the Director of Max Super Specialty Hospital, Saket,
to constitute a committee of two senior doctors preferably, one of whom is an
expert in liver transplant and biliary sciences. The plea mentioned that
minor’s mother is not a suitable donor and the 17 year old girl is the eldest
child and also of the same blood group of her father but then the plea was
rejected by the authorization committee approved by the Delhi government.
iii) Also, human organs or
tissues cannot be removed from the body of a mentally challenged person before
his death for the purpose of transplantation[18]. Where brain-stem death
of any person, less than eighteen years of age, occurs and is certified, any of
the parents of the deceased may give authority in such a form and manner
prescribed for the removal of human organ or tissue[19].
Remedial measures to eradicate organ trafficking
The National Human Rights Commission
had constituted a core group of medical experts to go into the issues relating
to the public health and human rights and in particular about the illegal organ
trade. The commission has called for the following measures on the basis of the
recommendation of the group,
?
State Medical Councils should screen the records of hospitals
performing organ transplants and estimate the proportion of transplants, which
have been made through a compassionate donor mechanism. In case of kidney
transplants, wherever the proportion has exceeded 5% of the cases performed in
any of the past 5 years, the State Medical Council should initiate a
full-fledged enquiry into the background of the donors and the recipients, as
well as a careful documentation of the follow-up health status of the donor and
the nature of after care provided by the hospital. Wherever police enquiry is
needed to know the backgrounds of donor and recipient, the aid of the State
Human Rights Commission may be sought for providing appropriate directions to
the state agencies.
?
Facilities for chronic renal dialysis should be increased and
improved in hospitals, to provide alternatives to kidney transplantation
?
Better facilities should be provided for transparent and effective
counseling of prospective donors.
?
Wherever possible, a mechanism should be established for
independent verification of the veracity of compassionate donation by a group
of experts, which is external to the hospital wherein the transplant procedure
is proposed to be informed.
Istanbul Declaration On Organ
Trafficking
To address the growing unethical
problems in the field of organ donation the transplantation society (TTS) and
the International Society of Nephrology (ISN) held a summit meeting in Istanbul
in 2008. In 2010 TTS and ISN created the Declaration of Istanbul Custodian
Group (DICG) to disseminate the Declaration and to respond to new challenges in
organ trafficking and transplant tourism. Between February 2018 and May 2018,
the DICG carried out a wide-ranging consultation, open to all interested
parties, to update the Declaration in response to clinical, legal and social
developments in the field. Results were presented, reviewed and adopted
accordingly.
Principles
1. Governments
should develop and implement ethically and clinically sound programs for the
prevention and treatment of organ failure, consistent with meeting the overall
healthcare needs of their populations.
2. The optimal
care of organ donors and transplant recipients should be a primary goal of
transplant policies and programs.
3. Trafficking
in human organs and trafficking in persons for the purpose of organ removal
should be prohibited and criminalized.
4. Organ
donation should be a financially neutral act.
5. Each country
or jurisdiction should develop and implement legislation and regulations to
govern the recovery of organs from deceased and living donors and the practice
of transplantation, consistent with international standards.
6. Designated
authorities in each jurisdiction should oversee and be accountable for organ
donation, allocation and transplantation practices to ensure standardization,
traceability, transparency, quality, safety, fairness and public trust.
7. All residents
of a country should have equitable access to donation and transplant services
and to organs procured from deceased donors.
8. Organs for
transplantation should be equitably allocated within countries or
jurisdictions, in conformity with objective, non-discriminatory, externally
justified and transparent rules, guided by clinical criteria and ethical norms
9. Health
professionals and healthcare institutions should assist in preventing and
addressing organ trafficking, trafficking in persons for the purpose of organ
removal, and transplant tourism.
10. Governments
and health professionals should implement strategies to discourage and prevent
the residents of their country from engaging in transplant tourism.
11. Countries
should strive to achieve self-sufficiency in organ donation and
transplantation.
The Transplantation of Human Organs and Tissues Act, 1994
The Transplantation of Human Organs
and Tissues Act, 1994 not only regulates organ donation and transplantation but
also prevents organ trafficking and punishes such persons who indulged in such
trafficking.
?
Donor and other persons who are empowered to give authority for
the removal of human organ or tissue shall not authorise such removal of organ
or tissue for any purpose other than therapeutic purpose[20].
?
The medical practitioner shall not undertake any removal or
transplantation of organ or tissue unless explaining in such a manner as may be
prescribed all possible effects, complications and hazards connected with the
removal and transplantation to the donor and the recipient respectively[21].
?
Any person who renders his services to or at any hospital and who
helps in any manner in the removal of any human organ without authority, shall
be punishable with imprisonment and fine. Where any registered medical practitioner
is convicted as mentioned earlier, his name shall be reported by the
appropriate authority to the respective state medical council for taking
necessary action including the removal of his name from the register of the
council for a period of 3 years for the first offence and permanently for the
second offence[22].
?
Whoever-
?
makes or receives any payment for the supply of any human organ;
?
seeks to find person willing to supply for payment any human organ
?
offers to supply any human organ for payment
?
initiates or negotiates any arrangement involving the making of
any payment for the supply of human organ or tissue shall be punished with
imprisonment and fine[23].
?
Whoever publishes or distributes, inviting persons to donate
organs in return for a monetary award shall be punished with imprisonment and
fine[24].
?
Whoever abets in the preparation or submission of false documents
including giving false affidavits to establish that the donor is making the
donation of the human organs, as a near relative or by reason of affection or
attachment towards the recipient[25].
?
Where any offence punishable under this act is committed by a
company, every person who was in charge and responsible to the company, at the
time of commission of the offence shall be deemed to be guilty of the offence.
Where any such offence which is punishable under this act is committed by the
company and it is proved that, it is committed in connivance with director,
manager, company secretary, they shall be deemed to be guilty of the offence.[26]
Machineries to weed out organ trafficking
The Central Government shall appoint
by notification one or more officers as appropriate authorities for each state
and union territories. The State Government shall appoint by notification one
or more officers as appropriate authorities[27].
The State Government and Union Territories shall constitute by notification,
one or more authorisation committees[28]
consisting of such members as may be nominated by the state governments and
union territories on such terms and conditions as may be specified in the
notification for the purposes of approval or rejection of donors.
Authorisation committee (AC)
The purpose of this body is to
regulate the process of authorisation to approve or reject transplants between
the recipient and donors other than the first relative. The primary duty of the
committee is to ensure that the donor is not being exploited for monetary
consideration to donate their organ. The joint application made by the donor
and recipient is scrutinized and a personal interview is essential to satisfy
the AC the genuine motive of donation and to ensure that the donor understands
the potential risks of the surgery. Information about the approval or rejection
of a donor is sent to the hospitals through mails.
Appropriate authority (AA)
The purpose of this body to regulate
the removal, storage, and transplantation of human organs. A hospital is
permitted to perform such activities only after being licensed by the
authority. The powers of AA include inspecting and granting registration to the
hospitals for transplant surgery, enforcing the required standards for
hospitals, conducting regular inspections of the hospitals to examine the
quality of transplantation and follow-up medical care of donors and recipients,
suspending or cancelling the registrations or erring hospitals, and conducting
investigations into complaints for breach of any provisions of the act. The AA
issues a licence to a hospital for a period of 5 years at a time and can renew
the licence after that period. Each organ requires a separate licence.
How can you donate your organs?
The procedure to donate organ is not
an arduous one. It is a voluntary and simple process. Because of lack of
awareness, it seems like toilsome process. Ways to donate organs are as
follows,
?
A person can fill up the consent form which is available in
National Organ and Tissue Transplant Organisation(NOTTO) to donate his/her
organs after death
?
Such consent to donate organs can be given by approaching the
hospitals, which being a registered and recognised one for organ
transplantation.
?
A donor can also get a donor card from registered organ donation
agencies. Though such card is not a legally enforceable one, it instils a
person’s consent to donate organs.
Organ donation day –Driving force
It can be rightly said that, organ
trafficking can be prevented and eradicated by all of us. It’s better to donate
organs to those who are in need rather than to decompose in the soil. Awareness
campaigns and programmes must be conducted to weed out all the superstitious
believes associated with organ donation. People must be made familiar with
organ donation process. “World Organ Donation Day” is observed on August
13 to inspire people to pledge to donate their organs. Live Donor and families
of Deceased Donors should be recognized, acknowledged and honored in social and
government events for their precious contribution to mankind. May all of us
indulge ourselves in this invaluable contribution and become immortal.
[1] Definition derived from the
Council of Europe Convention against Trafficking in Human Organs (2015), the
Declaration of Istanbul on Organ Trafficking and Transplant Tourism, available
at: https://www.declarationofistanbul.org/images/Policy_Documents/2018_Ed_Do/2018_Edition_of_the_Declaration_of_Istanbul_Final.pdf (last visited on 5/2/2023)
[2] Definition derived from the
Protocol to prevent, suppress and punish trafficking in persons, especially
women and children, supplementing the united nations convention against the
transnational organized crime (2000)
[3] Immuno suppressant therapy, available at:
https://www.kidney.org/atoz/content/immuno (last visited on: 5/2/2023)
[4] Coalition for Organ Failure Solution is a
non-profit international health and human rights organisation with a mission to
end the organ trade, especially trafficking in persons for the removal of
organs.
[5] Statement by Aimee Comrie, project
coordinator, GLO.ACT at United Nations Office on Drugs and Crime.
[6]Section 2(f) of Transplantation of Human
Organs and tissues Act, 1994.
[7] Section 2(m) of Transplantation of Human
Organs Act, 1994.
[8] Section 3 (1A) (i) of Transplantation of
Human Organs Act, 1994.
[9] Section 3 (2) of Transplantation of Human
Organs Act, 1994
[10] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.3
[11] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.2(i), s.9
[12]B.L. Nagaraj and others vs Dr. Kantha and
others, AIR 1996 Kant 82, ILR 1995 KAR 2050
[13]Brain
death and organ donation, available at: https://www.riajournal.com/doi/JRIA/pdf/10.5005/jp-journals-10049-0073
(last visited on 7/02/2023)
[14]Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994),s.2(d)
[15] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.3(6)
[16] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.2(f)
[17] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994),s.9(1B)
[18] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.9(1C)
[19] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s. 3(7)
[20] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.11
[21]Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.12
[22] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.18
[23] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.19, s.19A
[24] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.19(f)
[25] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.19(g)
[26] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.21
[27] Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.2(b)
[28]Transplantation of Human Organs and
Tissues Act, 1994, (Act No. 42 of 1994), s.2(c)