Author: Shabnam Kausher, High Court Advocate Jabalpur, (M.P.).
Organ donation is still an untouched field in India which is yet to gain traction. It is evident from organ donation rate of only 0.26 per million in India, where it is around 30 to 40 per million in developed countries. On the other side, the demand for organs is constantly rising while the supply is too limited to meet this demand. Due to this imbalance, donations have been commercialized and illegal markets have been flourishing tremendously. The socio-economic conditions of the country and existing legal framework are responsible for the rising commercial organ trading. This blog is aimed to critically analyze the condition of “organ trafficking” in India and the role of existing legal framework to prevent such incidents.
Keywords – organ trafficking, India, organ trade, legal framework, Indian legal system
NATURE OF ORGAN TRAFFICKING
According to the “Declaration of Istanbul (2008)”, illegal organ transferring refers to transfer, recruitment, harboring, transport, or receipt of organs of dead or living persons by either using coercion, force, deception, fraud, or any illegal activities for monetary benefits gained from third parties by exploiting potential donors. Organ trafficking consists of following aspects as defined by the “Council of Europe Convention against Organ Trafficking” –
Extracting organs from either deceased or living individuals without prior or free informed permission of them or while violating local laws where such incidents happen;
Activities like preservation, storage, transportation, transfer, import, export, and receipt of human organs;
Using organs for implantation;
Recruitment or solicitation of organ donor for commercial or financial gain for the third party or the one recruiting or soliciting;
Intentionally committing those offenses or getting commission of those crimes;
Promising, offering, or providing any unwanted benefits to people employed in healthcare facilities to implant or remove human organs in any illegal way, whatsoever, and
Demanding or receiving any excessive benefit from those healthcare employees to conduct any illegal activities mentioned above.
Any kind of financial transaction is illegal if it is connected with human organ trafficking under the law. The only condition is that such transplantation must be legally allowed as per the “Indian Legal Framework”.
RISING CASES OF ORGAN TRAFFICKING IN INDIA
Considering the above legal provisions and definitions of organ trafficking, it is evident that any kind of illegal transaction related to human organs is subject to “organ trafficking”. India is well known as the largest kidney trader globally and the first kidney transplantation succeeded in Mumbai in the year 1967. The “Transplantation of Human Organ Act” was enacted in 1994 which was proposed to control organ trafficking. But it was observed that illegal organ trading got some more scope along with corruption due to this Act. Under this Act, the “Authorization Committee” was established which allegedly approved transplantation of organs under “Section 9(3)” on the basis of an “Affidavit”. It was later found that there was no affection or any relation between the organ receiver and donor.
According to a report, there was a deal of more than 3000 kidneys took place in the state of Tamil Nadu where donors didn’t get the said amount. The infamous Amit Kumar case exposed the level of organ trafficking in India where fake promises were given to a lot of laborers who undergone treatment as live donors for Rs. 3 Lakhs. Amit Kumar allegedly charged around $50,000 per operation and over 500 illegal organ transplantation took place by the kidney racket kingpin. It is also reported that more than 2000 kidneys are sold every year in India. According to an NGO “Bachpan Bachao Andolan”, corpses of children without organs were found by them, but such cases are usually reported as kidnapping because it is simple for the Police to book those cases as abduction and murder on unknown people instead of doing investigation on organ rackets. According to a report by Human Rights, India witnesses over 44,000 missing reports of children every year and most of such cases are related to organ trafficking
LEGAL FRAMEWORK IN INDIA ON ORGAN TRANSFERRING
In several cases, organ trafficking is also connected with “human trafficking”. The Constitution of India has also granted the “Right against Exploitation” as Fundamental Right. This way, no citizen of India must be subjected to illicit trafficking under this law. In addition, “Right of a Person over his/her own body” and “Right to Health” has been announced as an essential element of Article 21, wherein every citizen of India has the right to live a dignified life. The “Section 360” of IPC considers offenses associated with kidnapping. However, if someone commits child trafficking for organ trade, they are also subject to penalty under “Section 12” of “Transplantation of Human Organ Act, 1994”.
The “Transplantation of Human Organ Act, 1994” was enacted to regulate organ transplantation to save the lives of humans from deaths caused by organ failures. This law was enacted to promote organ donations and this donation was restricted to only close relatives due to fondness and love. Only consensual donation is allowed by the Act for corpse donors. Even the families of the departed person has the right to give their organs if they have not opposed to any of those donations in lifetime. If the deceased person’s family doesn’t allow those donations, such consent would be deemed void and useless.
There were certain issues with the Act of 1994, which were challenged by an Amendment Act passed in 2011 and its provision was raised to West Bengal. This new Act enabled living persons to donate their organs. Doctors must get their parents informed about organ donation as an option, either to withdraw from or allow those donations. Failing to do so may attract punishments for doctors according to this Act. However, this Act also had some criticisms as Authorizing Committee’s role was still not clear and many medical professionals didn’t understand brain death due to lack of infrastructures in Public Hospitals in villages.
Despite the fact that there is just 0.6% donors over 1 million people in India, organ trade is still rising significantly. There is a demand for over 200,000 kidney donors but only 3500 donors could be managed. Hence, there is a uniform law needed in India to control the number of cases of organ trafficking in the near future. Because of existing superstition and religious beliefs, it is not easy to seek consent of family of the deceased. Due to this reason, the organ donation rate is falling down substantially after the enaction of Act of 1994. Even if the deceased had given consent for removal of their internal organs in their lifetime, their family doesn’t give consent for removing organs.
So, it is important the law should give preference to the deceased’ consent as it is their right to choose whether to donate their organs after death and make decisions on their own body. It is very important to generate awareness in India related to organ donations to meet the rising needs for organs to save lives. In addition, clearer law is needed for the operations of “Authorizing Committee” to remove illicit practices and corruption. Certain mechanisms are needed to improve transparency in medical field to take down the link with organ trafficking.
Like any other serious offense, organ trafficking is violating human rights all around the world. Organ trafficking has allegedly increased at a huge extent as an organized crime in India due to various reasons. Majority of population in India is still living under extreme poverty and such offenses have been emerged with serious and great nexus. Another major cause behind the rise of such offenses is huge demand of organs to save lives and steep decline in supply.
This article will cover all the factors giving rise to organ trafficking in India and Indian legal system which has been made to prevent such crimes. India has enacted laws but there is still a gap between the regulations and outcomes at ground level. This paper is an attempt to cover the nature of organ trafficking as an offense and laws to deal with them.