The Transplantation of the Human Organs (Amendment) Act, 2011. A case for legalizing sale of organs. By Indiritta Sngh D'mello, Director, Hospital Guide Foundation

It is paradoxical that even though there has been a medical breakthrough in terms of organ transplantation, people are still dying due to the non availability of vital organs. This is certainly not because of the lack of organ donors, but because the law unwittingly becomes an impediment to making organs available. Working in the area of healthcare, I routinely encounter patients who are facing death because of non availability of organs. As an NGO, we are often helpless when these patients approach us, with the hope that we will be able to give them some miracle solution.
The very reason that the Transplantation of the Human Organs Act (THOA) was passed, was to encourage altruistic donations in order to meet the demand of organs for therapeutic purposes and to curb commercial dealings. This intent has, unfortunately, been defeated. Twenty years after the original THOA was passed, and even after it was amended to include more stringent punishments, organ trafficking still continues to thrive. Case in point is the recent Odisha kidney sale racket where the medical director of a corporate hospital was arrested in June 2014. According to the World Health Organization, almost 10,000 organs are traded illegally every year globally. This means that an organ is being sold in the black market almost every hour. The trade has a few identified hubs - of which India, with its high population of poor - is one. Unofficial estimates are that almost 1,000 kidneys are sold every year in the country.
“When a product is desired, a market (legal or illegal) will develop; prohibition simply drives markets further underground. Clamping down on unlawful organ sales without expanding the organ pool will not result in less criminal activity.” Organ trafficking thrives because the organ donation story has been a virtual non starter in India. The demand for organs is high in India and the supply does not meet the demand even remotely. India is projected to be the diabetes capital of the world with 80 million people suffering from diabetes in 2025, which means the number of people who are going to have kidney failures in the near future is only going to spike exponentially. The lack of supply of organs in India is certainly not because of scarcity of population (1.21 billion according to the 2011 census). In case of cadaver donors, even if 5% to 10% of all brain dead patients became organ donors, it would mean that there would be no requirement for a living person to donate an organ. However, the proportion of organ donors in India is amongst the lowest in the world. India had 0.16 donors per million population in 2012 compared to 35 for Spain, 27 for Britain and 26 for US. In India, 12 people die everyday for want of an organ. Some 2.1 lakh require a kidney transplant annually but only 3000-4000 get it. In such a situation where it is a question of survival both for the patients who need the organs and for the poor who are trying to make ends meet, organ trafficking is bound to thrive. “The choice before the poverty stricken people is whether to sell one kidney and live, or keep both kidneys and die of starvation!”
Because of illegal trafficking, the poor get exploited at the hands of the middlemen, receiving only a fraction of the funds extracted for their organs. The donors are not informed properly of the risks and at times do not even know their organ is being removed; they suffer from poor health outcomes due to the lack of medical follow ups because of the clandestine nature of the transaction; and the recipient risks contracting diseases from the poor quality of the organ received like Hepatitis and AIDS. By legalizing the sale of organs, one can regulate the market and allay the ill effects of the illegal market.
In fact, the THOA sometimes even works against willing donors who are legally allowed to donate their organs. The thrust of the Act concentrates much on curbing the sale of organs, which creates cumbersome procedures resulting in procedural delays and can cost human lives. It also deters hospitals from encouraging organ donations from donors that are not ‘near relatives’ for altruistic reasons, as they fear getting involved in legal entanglements. The Act says that the donor can only donate for reasons of affection and attachment. Can one really establish when a person is genuinely donating for altruistic reasons specially in cases of not ‘near relatives’? The Authorization Committees want to play it safe, often falling victim to overkill, so not only in cases of those donors that are not ‘near relatives’ but also ‘relative donors’ they have rejected approval of organ transplantation. Even if the court orders these Authorization Committees to reconsider, this delays the whole process and puts the patient and family through more distress than what is necessary. These delays cause deterioration in the patient’s condition, often endangering their life.
However, the truth is that there is no utopian solution as far as live and cadaver donors are concerned. Live donor transplantations are sub-optimal for the donors in terms of risks of death and morbidity rates. Cadaver donor transplantations are sub- optimal for the recipient. Dr. Ajit Huilgol, Transplant Surgeon states that “the success rate in cadaver donor transplantation is 15 to 20% less than live donor transplantation.” If that be the case, it cannot be argued that an ideal solution is to have a cadaver donor program with less dependence on live donors or vice versa. To develop a successful cadaver donor program will have a set of its own challenges. One of the many challenges being the public outlook towards cadaver donors which is entwined with religious sentiments of keeping the sanctity of the dead body. And to be able to increase the number of organs available through living donors, altruism as the only incentive is not enough as there is pain, risk and financial loss involved in donating. Thus there is a need to legalize sale of organs in living donors, so that it can aid in meeting the demand of organs.

Even if it is assumed that a cadaver donor program is an ideal situation, then it may be argued that to legalize commercial dealing will dampen the cadaver donor program. However, the two are not mutually exclusive. “To argue that it is morally imperative to legalize the trade in human body parts is not to argue that other methods of organ procurement should be abandoned. Since one of the main reasons for advocating that such a market be legalized is to increase the supply of transplant organs, it is clear that any ethical means of achieving this should be encouraged.”

On ethical grounds, there is a case for legalizing sale of organs. Where human lives are concerned, no legal barrier should supersede the need to save lives provided it is done through ethical means. The law is not supposed to define ethics; on the contrary, the law is developed on ethical principles. It is these principles that define what is good for the individual as well as for society, and establishes the nature of obligations or duties on the basis of which laws are framed. “Society owes a duty to save the life of a dying man and in the event of failure to do so, it is absolutely immoral to interfere with his own arrangements by making unrealistic laws.” If the argument is used that we are encouraging commodification of organs, then the law makers cannot have double standards. By proposing The Assisted Reproductive Technologies Bill 2010, they have already endorsed commodification of reproductive body parts. To illustrate this point, we must consider that the risk of dying from renting out your womb is six times higher than from selling your kidney. If we are all right with commodifying reproductive body parts where it is not a question of life and death and the risk to the person who is commodifying her womb is higher than the person selling the kidney, then there is no reason why selling of vital organs in order to save lives should not be endorsed.

A utopian solution does not exist and will never exist. Taking into account the cultural and economic context of India, in legalizing the sale of organs in living donors, the pros far outweigh the cons. Apart from allaying the ill effects of the illegal market, we might be successful in saving the lives of many people waiting for transplant organs, as well as improve the quality of life of the many people who would otherwise have to undergo debilitating and painful procedures to stay alive. Such a step will have other positive effects like improving the economic conditions of the poor donors. Additionally the cost effectiveness for both, the patients and the healthcare system cannot be overlooked.
“Instinct often trumps logic. Sometimes that's right. But in this case, the instinct that selling bits of oneself is wrong leads to many premature deaths and much suffering. The logical answer, in this case, is the humane one.”