White Coat Crimes – The Transplantation of Human Organs Act (THOA), 1994

Author: Shereen Rodrigues 

1. INTRODUCTION

However, because there are more patients in need of transplants than there are donors, laws must be in place to prevent illicit conduct involving the sale of organ transplantation. Illegal Trading in human organs has taken on draconian proportions. The criminal market in human organs has surpassed the number of charitable donors. Organ and tissue transplantation has changed over the past 30 years from an experimental operation conducted only in highly developed countries to a therapeutic intervention performed in hospitals and clinics around the world thanks to advancements in medicine and surgery. Due to a lack of available organs, a robust global organ market has emerged, with kidneys being the most traded item. India is a rich ground for this trade because of a combination of poverty, substantial inequality, and pervasive corruption.  

The country's expanding middle class, lack of a universal health insurance program, widening wealth and income gaps, and, to some extent, the use of technology all contribute to the commercialization of organs as a profitable business venture for some and a problem for others. Organ trade is a social issue in India. It has to do with taking advantage of those living in poverty by luring them in with money rewards that, on occasion, can be significant and satisfy their short-term financial demands right away. Organ donation necessitates an intrusive medical procedure with both physical and psychological consequences, unlike other comparable exploitative social circumstances. 

2. ARE ORGAN TRANSPLANTS LEGAL IN INDIA?

The Transplantation of Human Organs Act (THOA), 1994 , was passed by the Parliament in 1994, and it went into effect in the states of Goa, Himachal Pradesh, and Maharashtra as well as all the Union Territories on February 4, 1995. Following that, all States followed it, with the exception of Jammu & Kashmir and Andhra Pradesh, which have their own laws governing the transplantation of human organs. 

The Transplantation of Human Organs laws, which were last updated in 2014, expanding the scope of donation to include tissues for transplant. 

2.1. FEATURES OF THE ACT

• It made organ donations legal in India. 
• The authorization Committee must be organized at the State and Center levels and consist of a unique collection of experts. 
• Only the medical professional who has registered with the authority will be given the responsibility of executing the procedure to remove the organs from the deceased's body.
• If no one in the family disagrees, the relative may consent on behalf of the deceased.
• It criminalized the sale of organs.
• Formalized the idea of brain death in India.

The above given image explains the requirements for one to become an organ donor in India.

Hence, Organ Transplants are legal in India if the procedures are carried out by the laws laid down as per the Transplantation of Human Organs Act (THOA), 1994 . Further, we will look into the situation that has prevailed in India since the coming of the Transplantation of Human Organs Act (THOA), 1994.

3. THE SITUATION CURRENTLY PREVAILING IN INDIA

India was referred to as the "Kidney Bazaar" of the globe in the 1980s and 1990s and by the 1990s, approximately 100 transplants per month were being carried out in Mumbai alone due to the kidney transplant rackets, which were on the rise. The majority of these patients were from Arab nations. The Government of India passed The Transplantation of Human Organs Act (THOA) in 1994 in response to the rise in kidney fraud and other organ fraud in general. This Act made the sale of organs a criminal offence and made the idea of brain death acceptable in India. The Act imposes penalties for people who participate in illicit organ transplant rackets under sections 18 , 19 , and 20 .

As discussed earlier, in order to facilitate organ donation and transplantation procedures, the Transplantation of Human Organ Act (THO) was passed in India in 1994. In general, the act recognized brain death as a type of death and declared the selling of organs to be illegal. With the recognition of brain death, it became possible to begin solid organ transplants for the liver, heart, lungs, and pancreas in addition to kidney transplants. Organ trade and kidney scandals continue to be widely publicized in the Indian media despite the THO regulations.

Most of the time, laws have been poorly implemented, and their provisions have frequently been misused. In several states, the deceased donation program has gradually developed in parallel with the living-related and unrelated donation programs. A few hospitals in these states, along with devoted NGOs, have maintained the deceased donor program's pace. Numerous doctors in India have unfairly profited from this situation. Instead of raising public awareness about organ donation, they began with illicit organ transplants, with illegal kidney transplants being the most common because they are the most necessary. There are many bogus doctors who do these operations with phony medical credentials. Organ transplant trafficking is one of the most prevalent crimes worldwide, but it is also one of the least recorded in India and other nations, according to the World Health Organization (WHO). Illegal kidney trade is on the rise across the nation, primarily as a result of this disparity between supply and demand. 

There have been instances of kidney transplants carried out through the kidnapping or abduction of victims. Because there are so many poor individuals in our country, it happens that some people would donate their kidneys purely for financial gain. Donors never receive their whole payment since the business owners keep the remainder. 

To understand the current situation and the commercialization of organs in India further, we look into the cases given below –  

Manoj Kumar vs Central Bureau Of Investigation[1] and  Jeewan Kumar Raut & Anr vs Central Bureau Of Investigation[2]

[1] In January 2008, police detained many people in Gurgaon, an industrial city near New Delhi, India, for running a kidney transplant racket. Haryana and Uttar Pradesh police searched Dr. Amit Kumar's home and guesthouse on January 24, 2008. The clinic scandal lasted six to seven years, according to Gurgaon police. Kidney donors were offered Rs. 30,000. First, they were promised jobs at the clinic. Those who refused were sedated and operated on against their will. Most of the transplant recipients were from abroad. Haryana police, issued arrest warrants. Dr. Kumar and his associates evaded the police raid after learning of impending arrests.

Dr. Amit Kumar and his associates performed 600 kidney transplants in the past decade, investigators said. At least two hospitals provided aftercare. Police established through fingerprints that Dr. Kumar had multiple aliases and had been arrested four times for illegal organ trade. 2 hospitals and 10 labs in Greater Noida and Meerut, near New Delhi, were also allegedly involved. Haryana police suspected Kumar had fled the country and asked CBI to alert Interpol. The Kumar siblings received red corner notices.

Nepal detained Dr. Amit Kumar on February 7, 2008. 35 kilometers from the Indo-Nepal border, he hid at a wildlife lodge. Five of the suspects were convicted by a CBI special court in March 2013. Dr. Amit Kumar, got seven years RI and a fine of nearly Rs. 60 lakh.[2]

 

CONCLUSION

Organ donors are in high demand, yet there are few available. Severe demand for organs has led to a surge in illegal organ trade, which is worse in developing nations with high poverty and lax laws. Even after 15 years, the THO Act hasn't limited organ commerce or encouraged organ donation. In India, the best way is to promote deceased donations and make them mandatory until a person opts out. Along with strict legal regulations and implementation, society's conservative thinking must shift to close the organ gap.