1.

THE PROVISIONS UNDER TRANSPLANTATION OF ORGAN ACT AND RULES

PROHIBITING COMMERCIAL TRANSACTION IN ORGAN TRANSPLANTATION ARE
CONSTITUTIONALLY VALID.

The Transplantation of Human Organs Act, 1994 and The Transplantation of Human Organs
Rules, 2014 were enacted by the Parliament with the object to prevent the commercial dealings
in human organs which was further enunciated in the Preamble of the Act. Thus, the Act so as to
prevent commercial transaction in organ donation provides that the organ donor should be a
near relative
1
with an exception that if the donor not being a near relative agrees for donation
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
Authorisation Committee.
2
An application jointly made by the donor and the recipient, the
Authorisation Committee shall, after holding an inquiry may permit the transplantation
3
provided
that the procedures and guidelines envisaged in Rule 7 are observed and agreed with by the
Committee or the competent Authority, failing of which the permission would be denied. Clause
(iii) of Sub-Rule 3 of Rule 7 states that the Committee should evaluate that no commercial
transaction between the recipient and the donor and that no payment has been made to the donor
or promised to be made to the donor or any other person. The punishment for any such
commercial transaction is further provided in the Section 19 of the Act.
Miss Renu challenged the provisions of the Act and Rules which prevents and restricts
commercialization of human organs stating that these provisions are not constitutionally valid as
they take away her Right to Health guaranteed under Article 21 of the Constitution and should be
struck down.

I. THE PROVISIONS OF THE ACT AND RULES DO NOT INFRINGE OR ABRIDGE ARTICLE 21
OF INDIAN CONSTITUTION.
The contention rose by the Counsel for the Petitioner that the denial of the Authorization
Committee for transplantation of organs on the basis of any commercial transaction between
donor and recipient violates the Right to Health enshrined in Article 21 of Indian Constitution is
superficial. There is no doubt as to the fact that Right to Health is included in Article 21. In
Vincent Katara v. Union of India,
4
The Supreme Court held that the right to maintenance and
improvement of public health is included in the right to live with human dignity. But in the

1
Section 2(i) provides that near-relative means spouse, son, daughter, father, mother, brother or sister; Section
9(1) says no human organ removed from the body of a donor before his death shall be transplanted into a recipient
unless the donor is a near relative of the recipient.
2
Section 9(3)
3
Section 9(5), Rule 10 read with Rule 19.
4
AIR 1986 SC 2039
circumstances of the present case, it is most humbly submitted that there is no violation of Right
to Health as the restrictions imposed by the Legislature are fair, just and reasonable.
Article 21 states that No person shall be deprived of his life or personal liberty except
according to procedure established by law.
Therefore, A person can be deprived of his life or personal liberty provided that first, there
should be a law justifying interference with the persons life or personal liberty, and secondly,
the law should be a valid law i.e. that the procedure prescribed by that law, provided that the
procedure is just, fair and reasonable.
5
In A.K. Gopalan v State of Madras,
6
it was held that the
procedure established by law meant only procedural laws and not substantial laws i.e.
procedure enacted by a law made by a State. Meaning hereby that a person can be deprived of
his life or personal liberty by following any prescribed by the Legislatures in the statue. Whether
the law prescribing the procedure was a valid law or not was not checked upon. Later in Maneka
Gandhi v. Union of India,
7
it was held that a law prescribing a procedure for depriving a person
of life or person liberty must be just, fair and reasonable and not arbitrarily, fanciful or
oppressive. Therefore, the expression procedure established by law extends both to
substantive as well as procedural law.

II. THE PROCEDURE IS FAIR AND JUST i.e. Principles of Natural Justice are well observed.
The question which arises is that what is fair and just. The procedure which is just and fair must
include in itself the principles of natural justice. It should conform to the principles of natural
justice, that is, fair play in action. The contention of the counsels for the petitioner that the
provisions of the Act and rules prohibiting commercial transaction in organ donation are not just
and fair, that is, they do not observe principles of natural justice is purely baseless. It is again
most humbly submitted that the principles of Natural Justice are well observed in the provisions
of the Act and Rules.
The concept of Natural Justice encapsulates two principles in it:
(a) Nemo judex in causa sua
(b) Audi alteram partem
(a) Nemo judex in sua causa meant Rule against Bias, that is, that no person shall be Judge in its
own cause or the deciding authority must be impartial and without bias. The deciding authority
should neither be biased nor has his own interest in the case otherwise the proceedings would be

5
Maneka Gandhi v. Union of India, AIR 1978 SC 597
6
AIR 1950 SC 27
7
Ibid at 5
vitiated. In the present case, the deciding authority for the permit or denial of organ
transplantation is Authorization Committee.
8

According to Section 9 of the Act, in case of organ transplantation between persons who are not
near relatives 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 Authorisation Committee. It is upon the committee to examine that there is no commercial
transaction and if there is, then to reject the application for organ transplantation. While deciding
such cases, there can be no question of biasness by the committee as the Authorisation
Committee does not comprise of only one member but plurality of members. Both the Hospital
based and State or District Level Authorisation Committees consists of six members with Head
of the Hospital or the Chief Medical Officer as the Head of the Committee, as the case may be.
Two senior medical practitioners along with two eminent persons who served in high ranking
Government positions as laid in rule 12 and 13. Caution has been taken to such an extent by the
Legislature that the medical practitioner who will be part of the organ transplantation team for
carrying out transplantation operation shall not be a member of the Authorisation Committee
constituted under the provisions of clauses (a) and (b) of sub-section(4) of section 9 of the Act.
9

According to clause 3 Rule 11, No member from transplant team of the institution should be a
member of the respective Authorisation Committee. The Quorum of Authorisation Committee
should not be complete without the participation of the Chairman, the presence of Secretary
(Health) or nominee and Director of Health Services or nominee.
There is even provision for establishment of an Appropriate Authority under Section 13 which
can investigate any complaint of breach of any of the provisions of this Act or any of the rules
made thereunder and take appropriate action.
10
According to Rule 21, the applicant should be
personally interviewed by the Authorisation Committee which shall be videographed and
minutes of the interview shall be recorded so that the process is transparent and void of any
irregularity.
11
Any person aggrieved by the by an order of the Authorisation Committee under
sub-section (6) of section 9
12
or by an order of the Appropriate Authority under, may, within
thirty days from the date of receipt of the order, prefer an appeal to the Central Government in
case of the Union territories and respective State Government in case of States and later to Court
in accordance with the guidelines given in Section 22 of the Act. Section 13A provides for
establishment for an Advisory body whose function is to aid and advise the Appropriate
Authority from time to time. Thus, with all such provisions providing for plurality of members,
quorum, non- interference of any member from the organ transplantation team in the

8
Section 9(4) and Rule 7
9
Clause 1 of Rule 7
10
Clause (iv) of Sub-Section 3 of Section 13
11
The same function is also given in clause (iv) of Sub-Rule 1 of Rule 23.
12
Section 6 provides that if, after the inquiry and after giving an opportunity to the applicants of being heard, the
Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the
rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval.
Authorization Committee, in toto, do not render any possibility for any occurrence of incident
leading to biasness.
(b) Audi Aulteram Partem: It means to hear the other side. No person should be condemned
unheard by the deciding authority. This principle implies that before an order is passed against
any person reasonable opportunity of being heard must be afforded to him. This rule insists that
the affected person against whom order may be passed must be given opportunity to present
himself.
Legislature took full care as to observe and include audi alteram partem in the Act as well as in
the rules. Clause 2 of Rule 7 says that in the event of any document or information is found to be
inadequate or doubtful, explanation should be sought by the Authorisation Committee from the
applicant. Clause 6 of Section 9 provides that an opportunity of being heard would be given by to
the applicants. These clauses, thus, give reasonable opportunity to the applicants for organ
transplantation to present themselves in front of the Authorization Committee while deciding on
their particular case.
And if, after the inquiry and after giving an opportunity to the applicants of being heard, the
Authorisation Committee is satisfied that the applicants have not complied with the requirements
of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the
application for approval. Likewise, Rule 23(1) states that the Authorisation Committee should
state in writing its reason for rejecting or approving the application of the proposed living donor.
With the obligation of the Authorisation Committee to state its reason for denial another
principle of Natural Justice namely Reasoned Decision or Speaking Order is also observed.

(II) THE PROVISIONS AND RULES PROHIBITING COMMERCIAL ORGAN
TRANSPLANTATION ARE REASONABLE.
It will be too late as well as wrong to say that the expression 'procedure established by law' does
not mean a procedure which is reasonable, fair and just and that life means only survival or
animal existence. It is now established after Maneka Gandhi that procedure established by law
for the purpose of the deprivation of the right conferred by Article 21 should be reasonable, just
and fair. Thus, the expression procedure established by law extends both to substantive as well
as procedural laws.
There is no definite test to adjudge reasonableness of restriction imposed by the state through
law. Every case has to be judged on its merits looking into reasonable ness of substantive law
and procedural provisions. No abstract standard can be laid down for reasonableness. It is the
function of the court to decide whether a particular statue satisfies the objective test of
reasonableness. Reasonable restrictions have to be considered from the standpoint of the interest
of the public and not from the point of view of persons upon whom restrictions are imposed.

The Act which is in question in the present case was promulgated by the Legislature keeping in
mind the interest of the society at large and in perseverance of public morality. In all modern
states there are certain fixed principles of law enunciated and expanded by decisions of courts or
by statutes which demonstrate that individual rights are never absolute but are restricted by
certain limitations in the interest of decency, public order, public health, morality, security of the
State. The commercialization of organ transplantation may be in the interest of few and can be
regarded by some as a solution, however this so-called solution would only provide pragmatic
relief and unfortunately would lead to a far bigger problem of organ trafficking and of organized
business of paid organ donation. What has been seen as a boon for few would become a bane for
the whole of society.
The Latin maxim salus populi est suprema lex, that is, the safety of the people is the supreme law
and salus republicae est suprema lex, that is, safety of the State is supreme law co-exist and are
not only important but lie at the heart of the doctrine that the welfare of the individual must yield
to that of the community. Similarly, legalizing commercial transaction in organ transplantation
keeping in view the welfare of Miss Renu and those unfortunately surrounded by same
circumstances would be a threat to the safety of society at large. Legalizing paid organ donation
in exceptional cases like of Miss Renu would be taken as an undue advantage and will be
manipulated and exploited by the evils and ills of the society.
Reasonable restrictions can be imposed on the Fundamental Rights to secure a Welfare State. In
Kochuni v. States of Madras and Kerala,
13
Subba Rao, J., observed:
We must reconcile ourselves to the plain truth that emphasis has now unmistakably shifted from
the individual to the community. We cannot overlook that the avowed purpose of our
Constitution is to set up a Welfare State by subordinating social interest in individual liberty or
property to the larger social interest in the right of the community. . . . The Police power of the
State is the most essential power, at times most insistent and always one of the least limitable
powers of the Government. In order to ensure orderly progress towards the goal of sovereign
democratic Republic and secure justice, liberty, equality and fraternity to all citizens as
mentioned in the Preamble to our Constitution, reasonable restrictions can be imposed on some
of the Fundamental Rights. The question of reasonableness is justiciable.
The State, sometimes, is confronted by such situations that it becomes expedient for the State to
impose reasonable restrictions on the fundamental rights of few unfortunate citizens like Miss
Renu so as to safeguard the interest and morality of whole of the society. In the State of Madras
versus V. G. Rao,
14
Patanjali Shastri, the Chief Justice of India, observed:

13
AIR 1960 SC 1080
14
AIR 1952 SCR 597

The nature of the right al1eged to have been infringed, the underlying purpose of the restriction
imposed, the extent and urgency of the evil sought to be remedied thereby; disproportion of the
imposition, and the prevailing conditions of the time should all enter into judicial verdict.
The pressure of the day in regard to the imperatives of public morality and public interest might,
it is true, require the sacrifice of the life and personal liberty of few individuals. Compulsion of
the State for the very preservation of the values of freedom of democratic society and of social
order might compel a curtailment of individuals life and personal liberty. Even in Vincent
Katara v. Union of India, the landmark case which gave Right to Health, restrictions were
imposed on the sale of such drugs banned by the Drugs Consultative, keeping in view the best
interest of the citizens. Similarly, the State has power to impose regulations over the manufacture
and sale of intoxicated liquor with such conditions and restrictions as may be necessary in the
public interest.
15
Prohibition too was regarded as a kind of reasonable restriction in Narendra
Kumar v. Union of India.
16
In Bijoy Cotton Mills Ltd. v. State of Ajmer,
17
where the Minimum
Wages Act empowering the Government to fix minimum wages was held reasonable under the
pretext of the interest of general public. The Court observed: In an under-developed country
which faces the problem of unemployment on a very large scale, it is not very unlikely that
labour may offer to work even on starvation wages. In the same way, under the prevailing
conditions of Indian Society, legalized paid organ transplantation would attract many
unemployed youth of our country resulting in their exploitation.
JUDICIAL PRONOUNCEMENTS

If to save hundreds of lives one life is put in peril, or if a law ensures and protects the greater
social interest, then such a law will be regarded as a wholesome and beneficial law although it
may infringe the liberty of some individuals. It will ensure for the liberty of the greater number
of the members of the society at the cost of one or a few. It is the duty of the State to see that the
rule enunciated in article 21 is available to the greatest number.
18
If individuals have such a right
surely the State can enact a Statute to sub serve the social purpose of ensuring public order so
that life and liberty are preserved.




15
Lakhanal v. State of Orissa, AIR 1977 SC 722; Trichur v. State of Kerala, AIR 1981 SC 1863
16
AIR 1961 SC 418
17
AIR 1955 SC 33
18
Inderjit Baruna v. Assam, AIR 1983 Del 513

2. THE COMMERCIALIZATION OF ORGAN DONATION IS NO REMEDY BUT INSTEAD
DETRIMENTAL TO SOCIETY.
Organ Transplantation is a boon to medical industry as it has helped in saving the lives of those
who would have died otherwise. There is a great need for human organs for transplantation
which led to the formulation of various legislations, attempting to regulate the scare resources
(transplantable human organs) and to help establish an equitable system to allocate the organs
where they can do the most good. Live donation of a single kidney was the first done in 1954,
but live donation of parts of other organs is a relatively recent innovation in the 1990s. Kidney
transplants in India first started in the 1970s and since that time, India has been a leading country
in this field on the Asian sub-continent.
The evolutionary history of transplants in the last four decades has witnessed a different facet of
transplant emerging in each decade. The first 10 years were spent mastering the surgical
techniques and immune-suppression. Its success resulted in a phenomenal rise in the numbers of
transplants in the next 10 years and unrelated kidney donation from economically weaker
sections started taking place with commerce in organ donation becoming an acceptable integral
part of the program. The next 10 years saw an outcry from the physicians of the western world at
the growing numbers of these exploitative transplants being done in India. There were also
protests from many sections in India.
To attempt to overcome the uncontrollable trade in organs the Indian parliament passed
Transplantation of Human Organs Act in 1994, in keeping with the WHO guiding principles,
prohibiting commercial dealings. The aim of the Transplantation of Human Organs Act is to
provide for the regulation of removal, storage and transplantation of human organs for
therapeutic purposes and for the prevention of commercial dealings in human organs. The
Indian Parliament outlawed commercial transplants and recognized the concept of brain death
allowing organ retrieval from deceased donors. Although the history of cadaver transplants in
India is recent, the first attempts to use a cadaver donor's kidney were undertaken in 1965 in
Mumbai. The number of commercial transplants fell after the enactment of this law. Legally,
organ donation can take place from living, genetically-related individuals; from living, unrelated
individuals in special circumstances where no unauthorized payment is made to the donor; or
from cadavers.
Legalization of paid organ donation would not curb down the menace of illegal organ trafficking
but instead will give birth to many unethical and international uncontrollable problems,
ultimately, leading to an increase in the illegal organ trade.
I. LEGALIZED PAID ORGAN DONATION IS UNETHICAL.
Transplantation of human organs and tissues, which saves many lives and restores essential
functions for many otherwise untreatable patients, both in developing and developed countries,
has been a topic for ethical scrutiny and health care policy-making for more than thirty years. In
a country where monetary and political considerations are acquiring an ominous hold on the
behaviour of the medical profession, the scope for unethical acts in the transplant process is
fearsome. Organ trade will lead to medical and psychological complications. Several studies
report that the health status of vendors worsens after commercial donation, for example because
of a lack of follow up care. In addition, vendors suffer from social stigmatization leading to
social exclusion and depression. Besides, patients receiving a commercial transplant are worse
off compared to those who receive an organ from an altruistic donor due to a lack of screening
and unsafe surgery resulting in high infection rates.
(a)Commercialization leading to exploitation: Legalized organ trading can be regarded unethical
and unfair, since wealthy recipients have an advantage over the poor who do not have the
financial resources to buy an organ. Commercial organ trade will lead to exploitation of the poor
as it can be questioned whether selling a kidney is a truly autonomous choice. They will be
compelled by poverty and will give their organs act out of despair: under the pretense of a
decision out of free will. In addition, most donors are young men with no or little education.
Apart from the fact that it is not a long-term solution, it has not been proven that kidney sale
improves poor peoples lives. Several studies confirm that the financial status of kidney vendors
even deteriorate after the donation.
19
Besides, it can be questioned whether this way of
alleviating poverty is the right one: it forms a resignation with respect to the existence of poverty
without any prospect of eliminating the structural causes. Most of them are exploited by
middlemen who lure them by promising a hefty sum. In some cases even the rich are going to get
exploited. As an illustration, if an organ matches for donation with only one person then it is
highly probable that one persons demand in exchange of his organ would result in
exploitation.
The rich don't do it, and neither does the middle class only the poor are likely to do it, and it is
without question an act of desperation. When such desperation is the motive for selling a kidney,
to what degree can we argue that the decision is genuinely voluntary?
20
In many affordable
middle class or upper class families, even when there are relatives in good health who can
donate, the general argument that is often presented is why donate and take any risks when you
can buy? It relates to the exploitation of the poverty-stricken people by alluring them with
financial gains that at times can be large and can meet their immediate short-term financial
needs. Financial gradients are inherently exploitative, with the poorest in society being the ones
who come forward as sellers every time would further argue that the system can never be
adequately regulated to prevent exploitation of the poor and where financial motivation drives
the decisions.

19
Lisanne Denneman & Marianne Mol, Is legalizing commercial kidney donation medically-ethically justifiable?,
Global Medicine
20
Section 2(f) of THOA.
(b)Legalization would lead to commodification of body parts. A commodity is something that
"can be turned to commercial or other advantage." A person certainly uses their body for
themselves and their benefit, but they cannot turn that body over to others for their own
permanent use and benefit. The haves of society would treat the organs of have-nots like a mere
commodity. If ones organs become simply another commodity that can be bought and sold, like
cars or furniture, and are part of an estate, like houses or stock, doesnt that mean they should be
consistently treated as such? If a person goes into bankruptcy, would the value of their organs be
considered in the final value of their estate? If a person dies and property has to be sold in order
to pay off debts, might the persons relatives be forced into selling the organs? In addition to case
that the selling of organs would create an inappropriate commodification of the human body. The
ethical problems with unregulated and unmanaged trafficking in human organs would be
enormous and unacceptable.
(c)Paying for Organs Means Increasing Costs:Organ transplantation is already an expensive
process which that many poor people are unable to have it done and simply end up dying. Paying
people for the organs of deceased relatives may make more organs available, but it would also
increase the cost of the process, shutting out more poor people. It would end being profitable
only for the rich which can afford and not to the poor. If one of the reasons for allowing the sale
of organs is to make more organs available and save more lives, it cant be done in a way that
effectively prevents many people from ever obtaining an organ at all. The presence of a growing
middle class, the growing disparity between the rich and poor, and to some extent the presence of
technology in the country makes the process of commodification of organs a simple, quick, and
attractive business proposition for some and a solution for others.
(d)Not an effective method for financial gain: In some of the studies, it has been noted that when
the motive of donation has been purely commercial, donors in the post-operative period have
been more prone to ill-health. Whereas when the donation was purely altruistic, there was the
feel-good factor and the psychological recovery was much better. In a field study on Economic
and Health Consequences of Selling a Kidney, it was found that 96% of participants (over 300)
sold their kidneys to pay off debts. The average amount received was $1070. The average family
income declined by one-third after removal of the kidney and the number of participants living
below the poverty line increased. A total of three-fourths of the participants were still in debt at
the time of the survey. About 86% of participants reported deterioration in their health status
after nephrectomy. A total of 79% would not recommend that others sell a kidney. The article
concludes that among the paid donors, selling a kidney does not lead to a long-term economic
benefit and may be associated with a decline in health.
21
Lawrence Cohen
22
, like Goyal had
found that most of the donors were women who were deeply in debt and most of the money was
squandered by their husbands in gambling and debts and the promise of a better future was never

21
Goyal M, Mehta RL, Schneiderman LJ, Sehgal AR. Economic and Health Consequences of selling a Kidney in
India.JAMA. 2002;288:158993
22
Lawrence Cohen is an anthropologist from Berkeley
realized. Cohen found that poor people sold their kidneys to get out of debt or to support their
families; yet most of these families were back in debt very shortly minus their kidneys.
23
In their
enthusiasm to get the money, they are somewhat blinded to all the explanations given about the
surgery.
(e)Organ trade market would exploit the poor: Giving in to market forces and making organs a
commodity is fraught with dangers and erodes social, moral, and ethical values and is not an
alternative that can be acceptable to overcome the problem of organ shortage in a civilized
society. The very nature markets are indiscriminate, promiscuous, and inclined to reduce
everything, including human beings, their labor and even their reproductive capacity to the status
of commodities, to things that can be bought, sold, traded, and sometimes even stolen.
24
As long
there are people who can be exploited for money in society, certain evils are likely to perpetuate
and legalizing the organ donation process will add another dimension to that evil and further
weaken the social fabric. It is a sad indictment of the human condition that wherever there is a
market, people will strive to find a profit margin even when this results in human exploitation.
25

Buying and selling of human organs and tissues can never be made ethical because it will always
penalize the weakest. If history qualifies as a teacher, any market force in the area of organ
donation-regardless of how negligible-will quickly deteriorate into "black market" commodities
trading. Yes, this is an extreme example, but it is a real one nonetheless.
While there is certainly a critical need to solve the organ shortage problem, introducing money
into an enterprise that has until now been solely characterized by acts of selfless goodwill is crass
and, as has already been demonstrated, can lead to abuse. Persons would be forced to donate
under family pressure. Any taint of coercion, profiteering, or organ stealing could do irreparable
damage to a system which, though it has its problems, is still remarkably successful as is. The
ethical problems with unregulated and unmanaged trafficking in human organs would be
enormous and unacceptable.
II. INTERNATIONAL TREND WITH REGARD TO COMMERCIAL ORGAN TRANSACTION.
According to WHO, kidney transplants are carried out in 91 countries. The shortage of organs is
virtually a universal problem. Even in developed countries, where rates of deceased organ
donation tend to be higher than in other countries, organs from this source fail to meet the
increasing demand. The use of live donors for kidney and liver transplantation is also practised,
but the purchase and sale of transplant organs from live donors are prohibited in many
countries.
26
The shortage of an indigenous supply of organs has led to the development of the
international organ trade, where potential recipients travel abroad to obtain organs through

23
Cohen LR. Where It Hurts: Indian Material for an Ethics of Organ Transplantation 1999;128:13565
24
The End of the Body: The Global Traffic in Organs for Transplant Surgery, Nancy Scheper-Hughes.
25
Rothman DJ, Rose E, et al. The Bellagio Task Force report on transplantation, bodily integrity, and the
International Traffic in Organs. Transplant Proc. 1997;29:2739745.
26
Cherry MJ. Kidney for sale by owner: human organs, transplantation, and the market. Washington: Georgetown
University Press; 2005.
commercial transactions. The most common way to trade organs across national borders is via
potential recipients who travel abroad to undergo organ transplantation, commonly referred to as
transplant tourism. These cases may involve human trafficking for the purpose of organ
transplantation. India was a commonly known organ-exporting country, where organs from local
donors are regularly transplanted to foreigners through sale and purchase. Although the number
of foreign recipients seems to have decreased after the enactment of a law banning the organ
trade (the Human Organ Transplantation Act of 1994). The drop in foreign recipients in India
was accompanied by an increase in the number of foreign recipients in other countries, such as
Pakistan and the Philippines. The discussion of commercial organ donation is overshadowed by
horrendous stories about exploitation and murder in countries like Pakistan and China. The
abuse, fraud and coercion of paid kidney donors are also frequently reported. These reports have
raised serious concerns about the consequences of the international organ trade, both for
recipients and donors.
The World Health Organization (WHO) is strongly against payment for any type of organ
donation. Organ trade is illegal in all countries, except for Iran. China, the country with the
second highest transplantation rate has recently introduced stronger restrictions on organ trade as
well. In 1991, the World Health Assembly approved a set of Guiding Principles (see link below)
which emphasize voluntary donation, non-commercialization and a preference for cadavers over
living donors and for genetically related over non-related donors. The Ethics department (ETH),
along with what is now the Department of Essential Health Technologies (EHT/HTP), undertook
a study of the current issues in organ and tissue transplantation. ETH/SDE and EHT/HPT, with
advice from a wide range of experts and special support from transplant officials in Spain, the
United States, and France, jointly carried out a consultation process which culminated, at which
37 clinicians, ethicists, social scientists, and government officials from 23 countries, representing
all WHO regions and all levels of economic development, closely analysed issues of global
concern regarding the ethics, access and safety of tissue and organ transplantation. The report by
EHT and ETH led to the adopted a resolution recommending action by the World Health
Assembly in May 2004. The resolution adopted states (WHA57.18) urges Member States to
take measures to protect the poorest and vulnerable groups from transplant tourism and the
sale of tissues and organs.
27
Further debate at a summit in 2008 by the Transplantation Society
and the International Society of Nephrology led to the Declaration of Istanbul on Organ
Trafficking and Transplant Tourism stating: Organ trafficking and transplant tourism violate the
principles of equity, justice and respect for human dignity and should be prohibited. Transplant
commercialism targets impoverished and otherwise vulnerable donors leading to inequity and
injustice.
28


27
Resolution on human organ and tissue transplantation. Geneva: WHO; 2004 (WHA 57.18).
28
International Summit on Transplant Tourism and Organ Trafficking. The Declaration of Istanbul on Organ
Trafficking and Transplant Tourism. Clin J Am Soc Nephrol.2008;3:1227231
Another report on The Global Traffic in Human Organs states that: The growth of medical
tourism for transplant surgery and other advanced procedures has exacerbated between the
haves and have-nots. In general, the flow of organs, tissues, and body parts follows the modern
routes of capital, from third to first world, from poor to rich, from black and brown to white, and
from female to male bodies. The coercion of organ donation has been the rule and not the
exception in many countries where money is offered in exchange for transplantable organs. In
China, prisoners are executed and their organs are sold to the highest bidder
III. EFFORTS OF STATE FILLING THE LACUNA OF ORGAN TRANSPLANTATION
THOA came under the criticism of being opaque while suIn 2008, after the adoption of the
revised WHO Guiding Principles and the Declaration of Istanbul, the Indian government
amended the Transplantation of Human Organs Act. The Honble High Court of Delhi in its
order dated 6.9.2004 had set up a Committee to examine the provisions of Transplantation of
Human Organs Act, 1994 and the Transplantation of Human Organs Rules, 1995. A National
Consultation and the report were submitted. The recommended changes required amendments in
the Transplantation of Human Organs Act, 1994 and the Rules framed there under.
There is a lack of transparency in the current dealings that is leading to the law being
broken. the government is considering second degree relatives for the donation of
organs. While the current law is good, if it is made easy for people to donate organs
there could be unrelated. The section mentioning that only close relatives can
donate kidneys is too restrictive and needs to be widened. Also the provision for non
relatives to donate kidneys for attachment or emotional reasons could be misused
by any individual who could sell a kidney illegally
The number of fatal road traffic accidents every year in India is constantly rising and averages at
about 8,500 per year. At any given time there are 8 to 10 brain dead patients in different ICU's in
any major city of the country. There is hence potentially a huge pool of brain death donors
available in India. Mostly, private or non-governmental organizations have been working
towards the success of the transplantation program. Among these the Initiative for Organ sharing
group started by MOHAN Foundation in Tamil Nadu has shared 68 organs in the last 2 years
between five hospitals. The foundation is also hoping to affiliate with other similar organization
in other regions such as FORTE (Foundation for Organ Transplantation and Education) at
Bangalore & ZTCC (Zonal Transplant Co-coordinating Committee) at Mumbai that have also
similarly shared organs between different hospitals.
Therefore, in order to promote donation of organs, the government has planned to give incentives
to the donors family like lifelong free medical check-up and care in the hospital where the organ
donation took place. Besides, a customized life insurance policy of Rs 2 lakh for three years with
one-time premium to be paid by the recipient in case of mortality and preferred status in organ
transplant waiting list if the next-of-kin of a brain-dead donor requires a transplant in future.