Criminology
Socio Economic Offences: Nature and Dimensions
Trade in Human Organ
Role Name Affiliation
Principal Investigator Prof. Bajpai NLU, Delhi
Paper Coordinator Dr. Kavita Singh Associate Professor, West Bengal National University of Juridical Sciences, Kolkata Content Writer/Author Sampa Karmakar Singh Assistant Professor, West
Bengal National University of Juridical Sciences, Kolkata Content Reviewer Dr. Kavita Singh Associate Professor, West
Bengal National University of Juridical Sciences, Kolkata
DESCRIPTION OF MODULE
Items Description of Module
Subject Name Criminology
Paper Name Socio Economic Offences: Nature and Dimension Module Name/Title Trade in Human Organ
Module Id
Objectives The objective of this module is:
To inculcate within the readers in-depth knowledge about the menace of trade in human organs and respective laws prohibiting trade in human organ.
To explain basic concepts required for better understanding of the global problem of trade in human organ vis-a-vis the noble cause of organ donation for its eradication.
Title: Trade in Human Organ Synopsis:
Introduction
Demand And Supply Equilibrium Of Organ Trade
Transplant Commercialism And Transplant Tourism
From Socio-Economic Viewpoint
International Efforts To Combat Trade In Human Organ:
The Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially Women And Children, Supplementing The United Nations Convention Against Transnational Organized Crime, 2000
World Health Organization (WHO) Guiding Principles On Human Cell, Tissue And Organ Transplantation, 2010
Optional Protocol On The Sale Of Children, Child Prostitution And Child Pornography (2000) To The UN Convention On The Rights Of The Child (1989)
An Additional Protocol To The European Convention On Human Rights And Biomedicine Concerning Transplantation Of Organs And Tissues Of Human Origin (2002)
The Declaration Of Istanbul On Organ Trafficking And Transplant Tourism:
Indian Legal Regime:
The Transplantation of Human Organs Act, 1994
Offences And Penalties Under The Transplantation Of Human Organs (Amendment) Act, 2011
National Organ And Tissue Transplant Organization (NOTTO)
Living Donor Compensation And Reimbursement Worldwide
Organ Donation Day To Spread Awareness
Conclusion
1. INTRODUCTION
Trade in human organs has caused worldwide concern. “Human Organ” means any part of a human body consisting of a structured arrangement of tissues which, if wholly removed, cannot be replicated by the body.1In the early twentieth century, progress in medical science, particularly in the field of organ and tissue transplantation has contributed a lot to save human lives or to improve their quality. Major clinical and scientific advances resulted into surgical transplantation of human organs from deceased2, as well as from living donors to sick and dying patients. Initially, organ transplantation3 was started with the noble therapeutic purpose4 for saving lives but with growing demand and scarcity of supply of human organs, cells and tissues for transplantation in the market, it has now became a full fledged trade for commercial purposes. This is unfortunate but glaring truth that one human is selling another human being as commodity for monetary or other benefits,5 which is a clear violation of human rights and dignity of a human being. In majority of cases, organ transplantation has gradually transformed into organ trade.6 Adding to this is the growing ease of global communication and travel which has led many patients to travel abroad to medical centres that advertise their ability to perform transplants and to supply donor organs for a single, inclusive
1 Section 2(h) of the Transplantation of Human Organs Act, 1994. See also, Nagendra Mohan Patnaik & Ors. 1997 (1) Andhra Law Times (ALT) 504, https://indiankanoon.org/doc/1414227/ last visited 16/10/2016.
2 It means a person in whom permanent disappearance of all evidence of life occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time after live birth has taken place.
3Section 2 (p) of The Transplantation Of Human Organs Act, 1994 provides “transplantation” means the grafting of any human organ from any living person or deceased person to some other living person for therapeutic purposes.
4 Section 2 (o) of The Transplantation Of Human Organs Act, 1994 provides “therapeutic purposes” means systematic treatment of any disease or the measures to improve health according to any particular method or modality.
5 Gaurav Jain v. Union of India, AIR 1997 SC 3021.
6 Due to progress made in the medical field, an increasing number of organs are now donated that would have been considered unsuitable for transplantation previously. For instance: removal of organs from donors older than 70 years, from donors with hypertension or diabetes etc.
charge.7 Trade in removal of human organ is an organized crime having transnational feature. This vicious cycle of organ transplantation involves a host of offenders in the racket:
2. Learning Outcome:
Trade in Human Organ is an emerging area of crime which requires lots of attention because of its global feature. After going through this module the readers will have a comprehensive knowledge of:
The concept of trade in human organ
Related International and National Laws
Procedure for Organ Donation
Living Donor Compensation and Reimbursement Worldwide
Spreading Awareness about Organ Donation
7 UNODC Assessment Toolkit on Trafficking in Persons for the purpose of Organ Removal, Vienna, 2015 at p. 36.
Recruiter who identifies the vulnerable person,
Transporter
Medical professionals,
Staff of the hospital/ clinic
and other medical centres Middlemen and
contractors, Buyers
Organ Banks where organs
are stored
3. Demand and supply equilibrium of organ trade:
“When you can buy one why donate?”
"The buyer wanted life and I wanted money."
These statements itself lifts the lid on this lucrative illicit trade in human organ. Where there is a demand in the market there are various legal and illegal ways to fulfil that demand. For example, China suffered from a huge organ shortage, for years it harvested the organs of executed prisoners to help meet demand, which followed international condemnation to finally end such ill practice.8 Accordingly, there is a huge demand for human organs worldwide, and whenever there's gap between supply and demand desperate buyers and desperate sellers will dictate a black market hidden in the shadows.9 According to a survey In India every year about 500,000 people die because of non- availability of organs, 200,000 people die due to liver disease, and 50,000 people die because of heart disease. Moreover, 150,000 people await a kidney transplant but only 5,000 get among them. When families or individuals are tired of spending years on a medical waiting list, they sometimes purchase body parts like kidneys, eyes, lungs, heart, limbs etc. for transplantation from the black market. The World Health Organisation has also uncovered a huge black market in human organs. Most are kidneys, sold to criminals by poor and desperate people in the developing world.10 Although, the market for hearts, lungs and other body parts is relatively small, kidneys make up the biggest proportion of transplants because donors can survive with just one. The Voluntary Health Association of India estimates that about 2000 Indians sell a kidney every year.11 Many people are more than willing to lose a kidney to gain a payment.12 A new kidney is the difference between life and death. Considering this some people say selling kidneys should not be banned but legalised as for very poor people, selling a kidney will always be an attractive option. At least if it was legal, they would get proper medical care and a proper financial reward. And, there would be more organs available for transplants.13
4. Transplant commercialism and Transplant Tourism:
Transplant commercialism is a practice in which an organ is treated as a commodity, by being bought, sold or used for material gain. Travelling across jurisdictional borders for transplantation
8 http://www.bbc.com/news/world-asia-china-33844080
9https://www.psychologytoday.com/blog/reading-between-the-headlines/201311/body-snatchers-organ-harvesting-profit
10 http://theday.co.uk/health/one-organ-sold-every-hour-in-illegal-trade
11 Roger Dobson, WHO Reports on the Growing Commercial Trade in Transplant Organs, British Medical Journal, Vol.
335, No. 7628 (Nov. 17, 2007), p. 1013. See also; http://www.jstor.org/stable/20508259
12 Mohammad A. Rai and Omer Afzal, Organs in the Bazaar: The End of the Beginning?, Politics and the Life Sciences, Vol. 26, No. 1 (Mar., 2007), pp. 10-11, See also, http://www.jstor.org/stable/40072922
13 http://theday.co.uk/health/one-organ-sold-every-hour-in-illegal-trade last visited 16/10/2016.
purposes by the movement of organs, donors, recipients or transplant professionals on a commercial basis is called transplant tourism.14 Transplant commercialism and transplant tourism both violates the principles of equity, justice and respect for human dignity and should be prohibited.15 India has long been a safe haven for "organ tourists" from all over the world. The modus operandi of organ trade networks across national borders through various strategies is by:
(a) Potential recipients travelling abroad to undergo transplantation.
(b) Live donors travelling abroad for donating organ for transplantation.
(c) Both recipients and donors from different countries move to a third country for transplantation.
14 Roger Dobson, WHO Reports on the Growing Commercial Trade in Transplant Organs, British Medical Journal, Vol.
335, No. 7628 (Nov. 17, 2007), p. 1013. See also; http://www.jstor.org/stable/20508259 last visited 12/10/2016.
15 http://multivu.prnewswire.com/mnr/transplantationsociety/33914/docs/33914-Declaration_of_Istanbul-Lancet.pdf
Fig.: Parts of the Body a Person Could Sell16 5. Socio-Economic Offence:
Trade in human organ has features of socio-economic offence. Vulnerability of victim is commercialised. It is the health of the organs and tissues that is most important, not the age of the donor.17Thus, age of the victim is no bar for this trade as organ could be harvested from persons of any age. Sometimes organ removal may not only be physically harmful, but may also have psychological and emotional impact on poor ‘donors’, who sell their organs to the black market in the hope of getting money. Organ brokers, middleman or recruiters compel, betray or may take advantage of vulnerable persons into selling their organs. They first identify vulnerable people or potential victims and then influence them into selling one of their organs, usually a kidney. Victims of such crime would often live in extreme poverty and heavily indebted. Unfortunately, sometimes donors themselves approach brokers insisting on the arrangement of the organ sale. Organ donors usually not receive the promised amount or getting far less than originally agreed, if anything at all. Usually, potential organ donors are hardly informed about the risks and consequences of the removal of their organ, but rather are convinced through the prospects of a better life and the monetary benefit out of such sale. Also, sometimes the donors are mislead by false statements like there is no harm in removing one kidney. Sometimes they are also told that there are two kidneys, a smaller and a bigger one and that only the smaller one would be removed. knowing that the person may be ignorant about these things. Strategies for enlisting and controlling victims could be like modus operandi employed as a part of different sorts of trafficking in people. There are broker-friendly hospitals, complete with surgeons who either don't know or don't care where the organs come from.18 Without the help of medical professionals this trade can’t flourish. It is fact that the entire racket is rarely exposed.
6. International Efforts to combat trade in human organ:
As it’s a matter of global concern, internationally lots of effort has been taken to combat this menace.
16https://www.google.co.in/search?q=parts+of+body+a+person+could+sell&espv=2&biw=1366&bih=662&source=lnms
&tbm=isch&sa=X&ved=0ahUKEwjgmqSQ7eLRAhUEsY8KHQ1kADwQ_AUIBigB#tbm=isch&q=tradein++human+or gan&imgrc=zoLpvW7xG4VTSM%3A last visited 12/10/2016.
17 http://www.kidney.ca/organ-donation-FAQ last visited 12/10/2016.
18 June 12, 2016 : Kidney racket: Three Apollo doctors likely to be questioned. Three nephrologists at the Indraprashtha Apollo Hospitals in New Delhi are likely to be questioned by the Delhi Police in connection with the transplant surgeries performed under their supervision which were facilitated by the kidney racket in which 10 persons have been arrested so far. T. Rajkumar Rao, the alleged kingpin in the kidney trade racket, is being produced before a court in North 24 Pargana district of West Bengal on June 8, 2016. Available at: http://www.thehindu.com/news/cities/Delhi/apollo-kidney-racket- three-nephrologists-likely-to-be questioned/article8720852.ece last visited 16/10/2016.
6.1. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 2000:
It is the first international legal instrument that defines trafficking in persons for the purpose of exploitation, which includes organ removal. Sometimes people get confused between trafficking in persons for removal of organ and trafficking of organs and use these two different crimes interchangeably. The object of the crime is the person in case of trafficking of persons for removal of organ and the object of the crime is the organ in case of trafficking of organs. Thus, in one case it is the person in another it is the organ itself. To depict diagrammatically the act, means and purpose of trafficking in persons for exploitation:19
19Article 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 2000. Article 4 (a) of the Council of Europe Convention on Action against Trafficking in Human Beings provides a similar kind of definition for trafficking in human beings and recognizes removal of organs within its definition.
The Declaration of Istanbul on
Organ Trafficking and
Transplant Tourism UN Protocol to Prevent, Suppress
and Punish Trafficking in Persons , 2000
Optional Protocol on the sale of children, child prostitution and
child pornography (2000) to the UN Convention on the Rights of the Child
(1989) The Guiding
Principles on Human Cell, Tissue and Organ Transplantation
of WHO , 2010 Additional Protocol to
the European Convention on Human
Rights and Biomedicine
Concerning Transplantation of Organs and Tissues of Human Origin (2002)
UNODC has developed an online Human Trafficking Case Law Database, which is the only global public record of human trafficking crimes.20
In India, the Criminal law (Amendment) Act, 2013 provides a similar kind of globally accepted definition for “trafficking of persons” under section 370 of Indian Penal Code. Thus, India also recognizes trafficking in persons for removal of organ. Article 23 of the Constitution of India also prohibits human trafficking. Trafficking in human organs is a crime that occurs in three broad categories:
20 The database currently consists of about 1,200 cases from 90 countries, with only twelve cases concerning trafficking in persons for the purpose of organ removal. This reflects that very few reported cases are available globally which directly deals with trafficking in persons for removal of organ. See also, UNODC Assessment Toolkit on Trafficking in Persons for the purpose of Organ Removal, Vienna, 2015, at p. 12.
ACT
Recruitment, Transportation, Transfer, Harbouring or Receipt
of persons
PURPOSE Prostitution or other forms of
sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of
organs.
MEANS Threat or use of force or coercion, abduction, fraud,
deception, abuse of power or of a
position of vulnerability or of
the giving or receiving of payments or benefits to achieve
the consent
6.2. World Health Organization (WHO) Guiding Principles on Human Cell, Tissue and Organ Transplantation, 2010:
There are 11 (eleven) guiding principles of World Health Organization (WHO) on Human Cell, Tissue And Organ Transplantation as endorsed by the sixty-third World Health Assembly in May 2010. The guiding principles in brief are as following:
1. Removal from deceased for transplantation:
(a) Consent to be obtained as per law.
(b) No reason to believe that the deceased person objected to such removal.
2. Physicians determining that a potential donor has died should not be directly involved in cell, tissue or organ removal from the donor or subsequent transplantation procedures; nor should they be responsible for the care of any intended recipient of such cells, tissues and organs.
3. Donation from deceased persons for its maximum therapeutic potential and from adult living persons as permitted by domestic regulations.
4. Non-removal from the body of a living minor or any legally incompetent person for transplantation other than narrow exceptions allowed under national law.
5. Donation freely, without any monetary payment or other reward of monetary value. The prohibition on sale or purchase of cells, tissues and organs does not preclude reimbursing reasonable and verifiable expenses incurred by the donor, including loss of income, or paying
Firstly, there are cases where traffickers force or deceive the victims into giving up an organ.
Secondly, there are cases where victims formally or informally agree to sell an organ and are cheated because they are not paid for the organ or are paid less than the promised price.
Thirdly, vulnerable persons are treated for an ailment, which may or may not exist and thereupon organs are removed without the victim's knowledge.
the costs of recovering, processing, preserving and supplying human cells, tissues or organs for transplantation.
6. Promotion of altruistic donation by means of advertisement or public appeal may be undertaken in accordance with domestic regulation.
7. Physicians and other health professionals should not engage in transplantation procedures, and health insurers and other payers should not cover such procedures, if the cells, tissues or organs concerned have been obtained through exploitation or coercion of, or payment to, the donor or the next of kin of a deceased donor.
8. All health care facilities and professionals involved in cell, tissue or organ procurement and transplantation procedures should be prohibited from receiving any payment that exceeds the justifiable fee for the services rendered.
9. The allocation should be guided by clinical criteria and ethical norms, not financial or other considerations. Allocation rules, defined by appropriately constituted committees, should be equitable, externally justified, and transparent.
10. The long term outcomes of cell, tissue and organ donation and transplantation should be assessed for the living donor as well as the recipient in order to document benefit and harm. The level of safety, efficacy and quality of human cells, tissues and organs for transplantation, as health products of an exceptional nature, must be maintained and optimized on an ongoing basis. .
11. The organization and execution of donation and transplantation activities, as well as their clinical results, must be transparent and open to scrutiny, while ensuring that the personal anonymity and privacy of donors and recipients are always protected.
These guiding principles have been crafted in such a fashion that if it is properly implemented then there is least chance of organ trade. It not only covers the procedure for pre -transplantation but also the long-term outcomes of cell, tissue and organ donation and transplantation, i.e., post- transplantation.
6.3. Optional Protocol on the sale of children, child prostitution and child pornography (2000) to the UN Convention on the Rights of the Child (1989):
The UN Convention on Rights of the Child (1989), is the most comprehensive document about children’s rights which protects the best interest of children and works accordingly. The Optional Protocol on the sale of children, child prostitution and child pornography (2000) to the UN
Convention on the Rights of the Child (1989), criminalizes and prohibits the “offering, delivering or accepting” of a child for the purpose of sexual exploitation, transfer of organs for profit, forced labour and adoption in violation of applicable legal instruments.21
6.4. An Additional Protocol to the European Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human Origin (2002):
The Protocol applies to the transplantation22 of organs and tissues of human origin carried out for therapeutic purposes.23Removal of organs or tissue from a living person may be carried out solely for the therapeutic benefit of the recipient and where there is no suitable organ or tissue available from a deceased person and no other alternative therapeutic method of comparable effectiveness.24Before organ or tissue removal, appropriate medical investigations and interventions shall be carried out to evaluate and reduce physical and psychological risks to the health of the donor. The removal may not be carried out if there is a serious risk to the life or health of the donor.25 Appropriate sanctions to be applied in the event of infringement of the provisions contained in this Protocol.26
6.5. The Declaration of Istanbul on Organ Trafficking and Transplant Tourism:
Organ transplantation, one of the medical miracles of the twentieth century, has prolonged and improved the lives of innumerable patients worldwide. Organ transplantation is not only a life-saving therapy but a shining symbol of human solidarity. Unfortunately, these accomplishments have been tarnished by numerous reports of trafficking in human beings who are used as sources of organs and of patient-tourists from rich countries who travel abroad to purchase organs from poor people.27To address the urgent and growing problems of organ sales, transplant tourism and trafficking in organ donors in the context of the global shortage of organs, all countries need a legal and professional framework to govern organ donation and transplantation activities, as well as a transparent regulatory oversight system that ensures donor and recipient safety and the enforcement of standards and prohibitions on unethical practices. Efforts to initiate or enhance deceased donor transplantation are essential to minimize the burden on living donors. A successful transplant programs also depend on the existence of the relevant health system infrastructure.
21 http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx last visited 22/10/2016.
22 Article 2(4) the term "transplantation" covers the complete process of removal of an organ or tissue from one person and implantation of that organ or tissue into another person, including all procedures for preparation, preservation and storage
23 Article 2 of the Protocol
24 Article 9 Removal of organs or tissue from a living person
25 Article 11 – Evaluation of risks for the donor
26 Article 26 – Sanctions
27 http://multivu.prnewswire.com/mnr/transplantationsociety/33914/docs/33914-Declaration_of_Istanbul-Lancet.pdf
7. Indian Legal Regime:
India has passed the Transplantation of Human Organs Act, 1994 to curb the sale of human organs.
This legislation is based on the recommendations from an expert committee chaired by Dr. L M Singhvi. Finally, India's first successful heart transplantation was performed in the All India Institute of Medical Sciences on 3 August 1994.28Trade in human organs has largely been halted in the States that have passed the Act and there has been police action against erring physicians and middlemen in more than one city. The object of the Transplantation of Human Organs Act, 1994 is as follow:29
Section 3 of the Transplantation of Human Organs and Tissues Rules, 2014 provides:
“A living person may authorise the removal of any organ or tissue of his or her body during his or her lifetime as per prevalent medical practices, for therapeutic purposes in the manner and on such conditions as specified in Form 1, 2 and 3.”
28 http://apps.who.int/iris/bitstream/10665/49565/1/IDHL_1995_47_n1_p88-90_en.pdf
29 Kuldeep Singh v. State of Tamil Nadu reported as (2005) 11 SCC 122 : (AIR 2005 SC 2106)
The Transplantation of Human Organs Act, 1994 provides
For the regulation of removal, storage and transplantation of human organs for
therapeutic purposes
For the prevention of commercial dealings in human
organs.
Although there are many difficulties ahead, it seems that organ transplantation in India is entering a new era characterized by major medical advances, not only in technology but also in ethics.
7.1 Different types of donors:
Human organ can be removed only from human beings, whether living, deceased or Brain-stem dead declared person.
.
• For organ or tissue donation from identified living near related donor
Form 1
• For organ or tissue donation by living spousal donor
Form 2
• For organ or tissue donation by other than near relative living donor
Form 3
Living Donor
Brain-stem Dead Declared
Person (Cadaver)
Deceased
Person
1. Living Donor: Donor means any person, not less than eighteen years of age, who voluntarily authorizes the removal of any of his human organs for therapeutic purposes.30
2. Brain-stem dead declared person (Cadaver): Brain-stem death means the stage at which all functions of the brain stem have permanently and irreversibly ceased and is so certified.31Basically, cadaver means a dead body, especially one intended for dissection.
3. Deceased person: It means a person in whom permanent disappearance of all evidence of life occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time after live birth has taken place.32
7.2 Procedure for removal of organ:
From a living donor:
Prior to removal of any human organ or tissue from a living donor the registered medical practitioner shall convince himself that the donor has been given a clear explanation of all potential side effects, hazards and complication and the donor has given approval in appropriate Form. The physical and mental assessment of the donor has been done, and the donor is in sound health and it has been certified that the donor is not mentally challenged and is fit for donating the organ or tissue. In case of uncertainty regarding mentally challenged status of the donor the registered medical practitioner may get the donor examined by a psychiatrist and the registered medical practitioner shall sign the certificate as prescribed in Form 4 for this purpose.
If the donor is a near relative of the recipient, the proposed donation has been approved by the competent authority.
If the recipient is spouse of the donor, the proposed donation has been approved by the competent authority.
In case of a donor who is other than a near relative the permission from the Authorisation Committee is required.33
Where a donor or recipient is a foreign national (who is a near relative), the approval of the Authorisation Committee is required. However, the Indian living donors wanting to donate to a foreigner other than near relative shall not be considered.
30 Section 2(f) of the Transplantation of Human Organs Act, 1994
31 Section 2(d) of the Transplantation of Human Organs Act, 1994
32 Section 2(e) of the Transplantation of Human Organs Act, 1994
33 B L Nagaraj & Ors. Vs. Dr. Kantha & Ors. AIR 1996 Karnataka 82, https://indiankanoon.org/doc/537327/
Living organ or tissue donation by minors shall not be permitted except on exceptional medical grounds to be recorded in detail with full justification and with prior approval of the Appropriate Authority and the State Government concerned.
Greater precautions ought to be taken where the donor is a woman, and her identity and independent consent should be confirmed by a person other than the recipient.34 In the course, of determining eligibility of the applicant to donate, the applicant should be personally interviewed by the Authorisation Committee which shall be videographed and minutes of the interview shall be recorded for making the entire process fair and transparent.35
7.3 Donor unrelated to recipient:
In this type of donation there is always a doubt of trade in human organ as why one donor will wish to donate his/her organ to an unrelated recipient. What is the reason behind such donation?
The National Human Rights Commission has also come across a number of instances in which the
‘compassionate donor’ provision in the Transplantation of Human Organs Act, 1994, is being abused.
In many cases, the donor is an unrelated and unacquainted person who is lured into donating an organ such as the kidney by financial offers made by or on behalf of the prospective recipient. While dealing with such cases the Authorisation Committee36 has to be very careful. The committee has to evaluate that there is no commercial transaction between the recipient and the donor. The link between the donor and the recipient and the circumstances which led to the offer being made has to be explained properly. While establishing the link between the donor and the recipient the committee has to carefully examine the documentary evidences of the link between the two. For example, to proof that they have lived together, old photographs showing the donor and the recipient together etc.
will to some extent confirm that there is no middleman or tout involved. The financial status of the donor and the recipient must be evaluated in the backdrop of the objective of preventing commercial dealing.37 It is also very important to ensure that the donor is not a drug addict. The near relative38or
34 Section 22 of the Transplantation of Human Organs and Tissues Rules, 2014 provides Precautions in case of woman donor.
35 Section 21 of the Transplantation of Human Organs and Tissues Rules, 2014
36 Section 9(4) of the Transplantation of Human Organ Act, 1994:
(a)The Central Government shall constitute, by notification, one or more Authorisation Committees consisting of such members as may be nominated by the Central Government on such terms and conditions as may be specified in the notification for each of the Union Territories for the purposes of this section.
(b) The State Government shall constitute, by notification, one or more Authorisation Committees consisting of such members as may be nominated by the State Government on such terms and conditions as may be specified in the notification for the purposes of this section.
37 Kuldeep Singh And Another Vs. State Of T.N. And Others, (2005) 11 Supreme Court Cases 122, https://indiankanoon.org/doc/1338744/
if near relative is not available, any adult person related to donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness about his or her intention to donate an organ or tissue. The authenticity of the link between the donor and the recipient and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of. When the living donor is unrelated and if donor or recipient belongs to a State or Union territory, other than the State or Union territory where the transplantation is proposed to be undertaken, verification of residential status shall be required, and in case of any doubt of organ trafficking, the Appropriate Authority of the State or Union territory of domicile or the Tehsildar or any other authorized officer shall inform police department for investigation and action as per the provisions of the Act.
8. Offences and Penalties under the Transplantation of Human Organs (Amendment) Act, 2011:
Relevant Section Offence Punishment
Section 18 Punishment for removal of
human organ without authority
(1) Any Person for removal of human organ: Imprisonment upto 10 years and with fine upto 20 lakh Rupees.
(2) If the person convicted under clause (1) is a registered medical practitioner: removal of his name from the register of the Council for a period of 3 years for the first offence and permanently for the subsequent offence.
(3) Any person for removal of human tissues: Imprisonment upto 3 years and fine upto 5 Lakh rupees.
38 Section 5(b)(i) of the Transplantation of Human Organs (Amendment) Act, 2011 defines near relative means spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter.
Section 19 Punishment for commercial dealings in human organs
Imprisonment for a term which shall not be less than 5 years but which may
extend to 10 years and shall be liable to fine which
shall not be less than 20 Lakh rupees but may extend to 1 Crore rupees
Section 19 A Punishment for commercial
dealings in human tissues
Imprisonment for a term which shall not be less than 1 year but which may extend to 3 years and shall be liable to fine which shall not be less than 5 Lakh rupees but may extend to 25 Lakh rupees
Section 20 Punishment for
Contravention of any other provision of this Act
shall be punishable with imprisonment for a term which may extend to 5 years or with fine which may extend to 20 Lakh rupees.
9. National Organ and Tissue Transplant Organization (NOTTO)
It is a National level organization set up under Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India. It has following two divisions:
1. National Human Organ and Tissue Removal and Storage Network:
This has been mandated as per the Transplantation of Human Organs (Amendment) Act 2011. The network will be established initially for Delhi and gradually expanded to include other States and Regions of the country. National Network division of NOTTO would function as apex centre for All India activities of coordination and networking for procurement and distribution of Organs and Tissues and registry of Organs and Tissues Donation and Transplantation in the country.
2. National Biomaterial Centre:
The Transplantation of Human Organs (Amendment) Act 2011 has included the component of tissue donation and registration of tissue Banks. It becomes imperative under the changed circumstances to establish National level Tissue Bank to fulfill the demands of tissue transplantation including activities for procurement, storage and fulfil distribution of biomaterials. The main objective of establishing the centre is to fill up the
gap between ‘Demand’ and ‘Supply’ as well as ‘Quality Assurance’ in the availability of various tissues.
9.1 National Organ Transplant Programme:
The objectives of National Organ Transplant Programme are:
To organize a system of organ and tissue procurement and distribution for transplantation.
To promote deceased organ and tissue donation
To train required manpower
To protect vulnerable poor from organ trafficking
To monitor organ and tissue transplant services and bring about policy and programme corrections/changes whenever needed.
The National Organ Transplant Programme with a budget allocation of Rs. 149.5 Crore for 12th Five Year Plan (2012-2017) aims to improve access to the life transforming transplantation for needy citizens of our country by promoting deceased organ donation.
10. Living donor compensation and reimbursement worldwide:
Recently, some countries like Singapore, Israel, Australia and Saudi Arabia has amended its laws to accommodate living donor compensation and reimbursement scheme. Such financial support should not be confused with a financial gift for the donor, but rather it’s a reimbursement and compensation for the expenses incurred by the donor, such as transportation, loss of wages, life insurance, and anticipated costs of long-term medical care. Critics suspect that these amendments may open the back door to organ trade. In the absence of a preventive robust system, vulnerable poor people may be exploited by unscrupulous middlemen to sell their organs. It’s an open secret that trade in human organ occurs as a lucrative business for unscrupulous syndicates and for countries that allow foreign 'transplant tourists' to have transplant operations they cannot get in their own country. 39
39http://hpm.org/en/Surveys/University_of_Singapore__Singapore/13/Reimbursement_of_living_organ_donors.html last visited 22/10/2016.
Serial No.
Name of the Country
Living donor compensation and reimbursement
1. Australia The Government is providing a six-week paid leave for organ donors.
Residents of the Western Australia province who will be traveling to Perth to donate their organs are eligible for reimburse from the provincial government for travel and accommodation expenses.
2. Israel The Organ Transplant Law does not allow any person to give or receive financial rewards for an organ donation; a donor is allowed to accept monetary compensation from the government for any financial losses accumulated during the process of donation. Israeli donors also receive non-monetary compensation such as an exemption from the national health tax for a certain period, a Certificate of Recognition, and free admission to the national parks.
3. Saudi Arabia Living organ donors could receive up to 50,000 riyals as a monetary reward from the government. The donors can also receive other benefits, such as lifetime medical care. The Prince Fahd Bin Salman Charity Society also works to provide reimbursements to donors for non-medical expenses, such as travel, accommodations, and lost wages.
Donors are also offered permanent discounts to fly on Saudi Arabian Airlines.
4. Singapore The Human Organ Transplant Law allows organ recipients to voluntarily provide financial compensation directly to the organ donors.
The government does not supply the money for reimbursement. Such financial support is a reimbursement for the expenses incurred by the donor, such as transportation, loss of wages, life insurance, and anticipated costs of long-term medical care.
In India, payment is banned in transplant cases by virtue of the Transplantation of Human Organs Act, 1994. However, payment means payment in money or money’s worth but does not include any payment for defraying or reimbursing –
(i) The cost of removing, transporting or preserving the human organ to be supplied; or
(ii) Any expenses or loss of earnings incurred by a person so far as reasonably and directly attributable to his supplying any human organ from his body.40
11. Organ Donation Day to Spread Awareness:
"This body will anyway wither away one day. If it can serve some useful purpose, so be it."
The donation of body parts or self sacrifice for the sake of humanity is in practice since time immemorial. An example of such an altruist behavior is of Maharshi Dadhichi, who sacrificed his life for the sake of humanity.41Organ Donation Day in India is celebrated on 13th of August every year in order to motivate normal human beings to donate organs as well as to spread awareness about the importance of organ donation as due to lack of awareness, there are myths and fears in peoples’ mind about organ donation.42 Facts about Organ Donation:
Anybody can be an organ donor irrespective of their age, caste, religion, community etc
The decision to donate organs is based on strict medical criteria, not age.
Tissues such as cornea, heart valves, skin, and bone can be donated in case of natural death but vital organs such as heart, liver, kidneys, intestines, lungs, and pancreas can be donated only in the case of ‘brain death’.
Organs such as the heart, pancreas, liver, kidneys and lungs can be transplanted to those recipients whose organs are failing because it allows many recipients to return to a normal lifestyle.
Anyone younger than 18 years needs to have the agreement of a parent or guardian to be a donor.
Anyone can and everyone should donate organs as organ donation will save lives. All major religions also support organ and tissue donation. One organ donor can save up to 8 lives and enhance the lives of many others through tissue donation. Also, provision of swap donation is included by the the Transplantation of Human Organs (Amendment) Act, 2011. Organ donation is the way to
40 Section 2 (k) of the Transplantation of Human Organs Act, 1994.
41 Dadhichi Deh Dan Samiti (DDDS) is an organisation named after Dadhichi which coordinates the organ donation with All India Institute of Medical Sciences (AIIMS). See also; http://www.dehdan.org/giftoflife.html last visited 13/10/2016.
42 http://www.indiacelebrating.com/events/organ-donation-day/
continue to live forever. It’s a kind of life after death. However, sale and purchase of organs is strictly prohibited.
12. SUMMARY
Trade in human organ is an unfortunate fact in the criminology world of today.43 Illegal trade in human organs is unethical and is a serious violation of human rights. National Human Right Commission has suggested remedial measures to all States/UTs to check illegal trade in human organs.44Cadaver Transplant programmes should be promoted to reduce the demand for ‘live donors’.
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 counselling 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 performed. There is an urgent need to examine the causes that lead to exploitation of poor and unaware persons in the process of organ donation in spite of stringent legal mechanism throughout the world and to suggest methods to reduce control and ultimately eradicate such malpractices.45
Beshak Meri jindagi kisi ke kaam na aayi……par meri maut ne kayee bujhte huyen deepak jala diye. In other words, “Donate organs to facilitate the noble cause of saving precious lives”46
43 http://www.decodedscience.org/organ-harvesting-human-trafficking-black-market/56966
44 http://nhrc.nic.in/Illegal%20Tread%20In%20Human%20Organs.htm last visited 17/10/2016.
45Writ Petition (C) 813 of 2004; Decided on September 6, 2004 AIR 2004 Delhi 413, https://indiankanoon.org/doc/362285/
46 http://notto.nic.in/awareness.htm last visited 17/10/2016
