Kidney scandals in India are a regular feature for the last decade or more in India. The recent nefarious kidney expose in Tamil-Nadu is yet another example of coercion and exploitation of the community from weaker economic sections and the inadequacies in the current law to protect their interests. In this instance it was the gullible tsunami affected victims who traded their organs and some of them felt cheated having not received the promised sum and hence made a police complaint. In a civilized society we are ruled by certain rights and wrongs and this kind of expose brings out a certain amount of repugnance from within us. Commodification of body used to be restricted to prostitution in the past; however today it is also seen with pornography and surrogacy. Commercialization in this free market economy seems to have spared no one including life itself and sale of kidney seems to be a step further in this process of commodification.
The Transplantation of Human Organ Act that was passed in the Indian parliament in 1994 and subsequently ratified by the many state assemblies; accepts brain death as a form of death and prohibits commerce in organs. It also limits donation of organs without any legal restrictions by only the first relatives (mother, father, brothers, sisters, son, daughter and spouse) of the recipient. By accepting brain death as a form of death, the law was expected to use a large pool of patient for organ donation and overcome the organ shortage especially of kidneys. It at the same time was expected to help develop other critical solid organ transplant programmes such as of liver, heart, lungs and pancreas. Since the act has been passed approx. 1200 transplants have been done of various organs that were sourced from this pool; however donations have been sporadic and the numbers have not been able to cater to the demand for organs (1). This has resulted in a thriving trade involving commercial donors and the middle man. In most instances the media expose has indirectly pointed a finger at the medical professionals along with the middle man; however it is very rare that any direct allegations have been made. In a few instances doctors have been caught unaware on a hidden camera in a sting operations carried out by the media.
The problem of organ trading has much deeper roots than what appears to be the case.
There are two issues to be addressed. The first relates to the effectiveness in implementing the current law and the second the financial compulsions that lead commercial donors to donate their organs.
The clause (Sub Clause (3), Clause 9 of Chapter II) in the act that gives room for unrelated transplant activity reads as follows: "If any donor authorizes the removal of any of his human organs before his death under sub-section (1) of section 3 for transplantation into the body of such recipient, not being a near relative as is specified by the donor, by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the Authorization Committee."
This clause has been grossly misused by one and all over the years since the act was passed.
* The organ failure patients uses this clause to find instant affection to a stranger who is willing to donate his/her organ for money; later the same person claims that they were duped and not paid enough money for the organ and all the affection that was presented to the authorization committee evaporates.
* The doctor feels that when the law itself provides a clause to help people whose own family members refuse to donate or those who do not have a fit or matching donor, why should not refuse. To them the plight of the recipient overrules all objections. They also argue that it is difficult for them to understand the so called true affection. They feel the responsibility to find true affection and relationships rests under the purview of the government authorization committee.
* The authorization committees when presented with such a case in their wisdom look at the provisions of the law and feel that the recipient and donor if they pledge affection in front of them why should they object unless there is a complaint or some gross oversight. Moreover in a few minutes it is difficult for them to check on the emotional overtones such as affection for a diseased person. They also opine that since the doctor sends such a case to the committee, they should verify such claims.
The problem has been on how to use this clause should it be used as leniently as is being done at present or should it be tightened. The point that is missed by all is that there is an exploitative element in this affection as in trying to obtain a donor, the recipient or the middle man lures them with money that is considered substantial by their economic standards. Dr. M.K. Mani, Chief Nephrologist at the Apollo Hospitals in Chennai in 1997 wrote: "The stalwarts of the unrelated live donor programme continue to do as many transplants as they did before the Legislative Assembly of Tamil Nadu adopted the Act. What is more, they do them with the seal of approval from the Authorization Committee, and are therefore a very satisfied lot. The law, which was meant to prohibit commercial dealings in human organs, now provides protection for those very commercial dealings." Dr. Mani's article is titled - 'The Law is an Ass". (2)
The second bigger societal issue is what are the circumstances that compels these commercial donors to risk their normal health to donate an organ. Some of the case studies make an interesting study and uncovers the fragility of these economically poor communities. Presenting the results of a study a few years ago on reason why people in Tamil Nadu donate their organs and its outcome, Dr. Goyal writes: Ninety-six percent of participants sold their kidneys to pay off debts. The average amount received was $1070. Most of the money received was spent on debts, food, and clothing. Average family income declined by one third after nephrectomy (P<.001), and the number of participants living below the poverty line increased. Three fourths of participants were still in debt at the time of the survey. About 86% of participants reported deterioration in their health status after nephrectomy. Seventy-nine percent would not recommend that others sell a kidney. (3)
Poverty and desperation manifests in our society in ways such as child labor, sale of tribals or children, prostitution, sale of girls to middle-east sheiks, adoption of our children by foreigners etc. Organ donation is one such desperate manifestation. Like other issues, kidney commerce in India is inter-linked with our socio-economic structure. In case of kidney donation what is required is to provide an alternative that is available. An alternative that can help in eliminating organ trade and overcome the shortage of solid organs. It is time we seriously think of ways by which we can promote the cadaver donation programme.
To give a momentum to the cadaver donor programme a few simple additions or amendments in the THO act may go a long way (4)-
1. A required request law that would make it compulsory for hospital staff to ask for organs in the event of brain death.
2. A Mandated Choice of organ donation clause in the Indian driving licenses.
3. Undertaking postmortem examination during the same time as organ retrieval surgery in medico-legal cases. At present after organ donation for retrieval surgery the brain death patient is subjected again to post-mortem and this causes unnecessary emotional trauma to the already aggrieved relatives.
4. Delinking Hospitals Where Organs Can Be Retrieved From Hospitals, where they can actually be transplanted. Moving bodies from one hospital that is not approved to another that is approved, limits the scope of number of brain death patients that is made available, difficult in brain death situation and most important traumatic to relatives of the patient.
5. Making it compulsory to appoint transplant coordinators in the intensive care units of hospitals undertaking cadaver organ transplant to identify and maintain brain dead patients. This transplant coordinator can be a senior nurse or a doctor
There is also a need to explore possibilities of how the Sub Clause (3) of the Transplantation of Human Organ Act does not get misused. These are few suggestions that may help in the living transplant situation:
1. Strengthening and making the authorization committees working more transparent by putting an Non-government organizations in the committee that can help with pre and post authorization counselling of kidney donors.
2. Providing uniform guidelines to authorization committee on how to interview - donors and recipients.
3. Recording the proceedings of the authorization committee meetings.
4. Authorizing select labs to undertake HLA matching.
5. Exploring possibilities of paired donations where a close relation or partner is fit and able to donate an organ but is not biologically compatible with the potential recipient. This couple can be matched to another couple in a similar situation, so that both the pairs in need of a transplant receive a matched organ.
There is an urgent need to get the ethics of the organ donation and transplants right. Today most of the cutting edge scientific advances in health sciences relate to organ regeneration, tissue engineering and cloning. To some extent the principles of ethics of kidney transplants is an acid test and will help us in evolving and solving many of the future ethical dilemmas that we are likely to encounter this century.
1. Ethics of Organ Donation & Transplantation Editorial. Indian Transplant Newsletter
:5:17/18, 2004. P8
1. INOS and the essence of organ sharing. Editorial. Indian Transplant Newsletter 3:10,2001
2. Mani MK. Making an Ass of the Law. Letter from Chennai. Natl Med J India 1997
3. Madhav Goyal, RavindraL Mehta et al JAMA 2002; 288:1589-1593
4. Shroff S, Navin S, Abraham G et al, Transplant Proc:35, 15-17, 2003
Managing Trustee, MOHAN Foundation, Chennai & Hyderabad
Prof & Head of the Department of Urology & Renal Transplantation,
Sri Ramachandra Medical College & Research Institute,
Porur, Chennai 600 116, India
: 91 44 24761546
: 91 44 26263477
/ [email protected]