This article on ‘Laws Against Organ Trafficking in India’ was written by Shivani Chaudhary, an intern at Legal Upanishad.
In India, organ donation is still a new field that hasn’t really taken off yet. It is clear from India’s low organ donation rate of 0.26 per million, which is significantly lower than the developed world’s average of 30 to 40 per million. On the other hand, there is a growing demand for organs, but there is not enough supply to satisfy this demand. This disparity has led to the commercialization of donations and the enormous growth of illegal markets.
The country’s socioeconomic situation and the current legal system are to blame for the expanding commercial organ trade. This article aims to critically examine the state of organ trafficking in India and the function of the current legal system in mitigating such occurrences.
MEANING AND NATURE
For the first time in history, organ trafficking was defined by the Declaration of Istanbul in 2008 as “Organ trafficking encompasses transit, transfer, harbouring, recruiting, receiving of living or deceased persons or their organs by either deception, coercion, force or any other criminal means.” to obtain riches or money from third parties by abusing potential organ donors in this manner.
The Council of Europe Convention on Organ Trafficking outlines the following characteristics of organ trafficking:
- Removing organs from a living individual or a sick person without their permission or in violation of the local laws where the organ trafficking is taking place,
- Transplanting this organ,
- The process of identifying, moving, transferring, importing, exporting, storing, and receiving such organs.
- Making a concerted effort to commit such a crime or providing material support for the commission of such a crime,
- Organ donation for financial gain or other commercial purposes is prohibited, according to this policy.
VICTIMS OF ORGAN TRAFFICKING IN INDIA
Many surgeons in metropolitan areas like Chennai, Bangalore, Delhi, and Mumbai claim there is a lack of information about the long-term effects of organ removal on patients. In areas where transplant surgery was taking place, obtaining this information was challenging, and tracking down the kidney seller after the fact was nearly impossible. (3)
However, kidney dealers typically come from low-income neighbourhoods or urban slums. The following realisation resulted from this:
- The number of women involved in the kidney sales industry is higher.
- For many in India, selling an organ is the last resort when they are drowning in debt.
- Kidney sales typically generate enough cash to pay off half of a person’s debts, fund a wedding, cover medical expenses, and put some of the kids through college.
- The majority of the time the husband drinks away the money.
LEGAL FRAMEWORK OF ORGAN TRAFFICKING IN INDIA
Organ trafficking is frequently linked to “human trafficking” in various situations. The “Right against Exploitation” has also been recognised as a Fundamental Right by the Indian Constitution. No citizen of India may be a victim of illegal trafficking as a result of this law. A person’s “right over his or her own body” and “right to health” have also been declared essential components of Article 21, which guarantees every Indian citizen the ability to lead a respectable life. “Section 360” of the IPC takes into account offences related to kidnapping. However, under “Section 12” of the “Transplantation of Human Organ Act, 1994,” those who traffic children for the purpose of selling them as organs are also punishable.
To prevent human deaths due to organ failures, the “Transplantation of Human Organ Act, of 1994” was passed to provide guidelines for organ donation and transplantation. Organ donation was made legal, but it could only be done between close relatives out of respect and affection for the recipient. According to the Act, only donors who give their informed consent may donate their bodies. If the deceased person’s family members did not object to organ donation during their lives, even the family itself can donate the organs after death. Such permission would be null and void if the deceased person’s relatives did not agree to the gifts.
An Amendment Act was passed in 2011 to address concerns with the original Act of 1994, and its provision was extended to West Bengal at that time. The new law legalised organ donation from living donors. All parents should be made aware of organ donation and allowed to make a decision about whether or not to consent to their child’s donation. Medical professionals risk legal consequences if they do not comply with this Act. The dearth of resources in rural public hospitals meant that many doctors and nurses still didn’t have a firm grasp on the concept of “brain death,” and this Act was not without its detractors.
RISING CASES OF ORGAN TRAFFICKING IN INDIA
In light of the preceding regulations and definitions, it is clear that any illicit transaction involving human organs falls under the umbrella term “organ trafficking.” It was in Mumbai, India, in 1967 when the first kidney transplant was a success, earning India a reputation as the world’s largest trader of kidneys. Organ trafficking was thought to be manageable when the “Transplantation of Human Organs Act” was passed in 1994. Corruption and illegal organ trading were both seen to expand as a result of the Act.
An “Authorization Committee” was supposedly formed under this Act to provide the go-ahead for organ transplants to take place under “Section 9(3)” on the basis of an “Affidavit.” It became out that the organ recipient and donor had no romantic or familial ties to one another.
More than 3,000 kidneys were allegedly traded in Tamil Nadu, but the donors were not compensated. The notorious Amit Kumar case brought to light the extent of organ trafficking in India, where many workers were duped into serving as live donors for a sum of three million rupees (about $600,000). In his capacity as the kingpin of the kidney ring, Amit Kumar allegedly charged about $50,000 for each procedure and over 500 illegal organ transplants were performed. There are reports that every year around 2000 kidneys are traded in India.
According to the non-governmental organisation Bachpan Bachao Andolan, they have discovered the bodies of children missing vital organs, but these cases are typically reported as kidnapping because it is easier for the Police to book these cases as abduction and murder on unknown people than to conduct an investigation into organ rackets. Human Rights Watch found that organ trafficking was a factor in over 70% of the 44,000 juvenile disappearances reported annually in India.
SUGGESTION AND CONCLUSION
Human trafficking and organ harvesting are increasing at a startling rate despite the fact that there are only 0.6% of officially registered donors for every 1,000,000 citizens.
There are between 150,000 and 200,000 people in need of kidney donors, but only 3,500 people each year may get one through the appropriate channels. This means that the number of people trafficking organs in India will almost certainly grow in the coming years. Given that health is a matter of state jurisdiction, comparing the Act of 1994 and the Act of 2011 reveals that they are not interchangeable in their scope. As a result, many of India’s impoverished who are afflicted with ESRD go untreated.
Prevention of renal failure is possible and more cost-efficient through early detection and treatment of diabetes and hypertension in a country like India. The brokers, doctors, transplant hospitals, and pharmaceutical corporations gain far more from the kidney trade than the actual kidney buyer. Most “five-star” hospitals that cater to transplant tourists are actually the hubs of the illegal organ trade. The Kidney Industry can Persist Due to Loopholes in the Law (THOA) and the Failure to Implement Necessary Regulations
It has also opened the door for the illegal sale of organs in India, necessitating a nationwide law that Parliament can enact by invoking Sections 249 and 252 of the Constitution.
In addition, the concept of family consent, in addition to the consent of the person holding custody of the dead body, has rendered the consent of the deceased irrelevant in cases of cadaver donation. Unfortunately, in India, where many people still hold strong religious and superstitious beliefs, it will be difficult to gain the consent of the deceased’s family even if an organ donation clause is included in the will. Since most families will not agree to the removal of organs from a deceased loved one, even if that person has expressed their desire for organ donation, the rate of organ donation has decreased since the Act of 1994 was passed.
- Sanjukta Bhattacharya, “Combating Organ Trafficking in India”, SSRN, 11 March 2012, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2019001
- “Council of Europe Convention against Trafficking in Human Organs”, Council of Europe, 25 March 2015, available at: https://rm.coe.int/16806dca3a