Organ transplantation is a life-saving medical procedure, but as the demand far exceeds supply, a lucrative black market for it thrives all over the country.
In a recent case, Dr. S. Ganapathy vs Lakeshore Hospital & Ors., the Kerala High Court issued summons to Lakeshore Hospital and eight doctors over violations of organ transplantation norms secured under the Transplantation of Human Organs Act (THOA), 1994. This was in the connection with a 2009 case when a youth was declared brain dead and his organs donated to a Malaysian national.
The Constitution provides rights against exploitation, including organ trafficking, which is closely related to human trafficking. Article 21 mandates the right to health and the right of a person over his body, guaranteeing the right to live with dignity.
The controversy began when the youth’s bike rammed into an electric post and he sustained a head injury. He was admitted to Mar Baselious Hospital, Kothamangalam, and later shifted to the prominent Lakeshore Hospital, Ernakulam, where he was declared brain dead. Doctors harvested his liver and kidneys in contravention of the Transplantation of Human Organs Act, 1994.
An FIR was lodged under Sections 109, 120B, 420, 302, 379 read with 34 IPC and Sections 18, 20 and 21 of the Act, claiming that the victim was denied proper treatment at both hospitals and that his organs were transplanted to a foreign national keeping his actual condition in the dark.
THOA is an essential legislation in India that aims to regulate the removal, storage and transplantation of human organs for therapeutic purposes. It prohibits any form of organ trafficking and ensures that organs are sourced ethically and with proper authorisation. The Act plays a crucial role in safeguarding the rights of both donors and recipients and maintaining the integrity of the transplantation process.
The complainant in this case was a doctor who had read about the incident in the newspaper and investigated the case. He found that the organ transplantation had been done illegally and that brain death was declared by a team of doctors who were not authorised for this purpose. Also, relevant tests were not performed to conclude death of the victim’s brain. The complainant claimed that the major drawback on the part of the two hospitals was non-evacuation of blood from the cranial cavity.
Later, an assistant professor of the Department of Forensic Medicine, Government Medical College, Manjeri, conducted the autopsy where it was found that evacuation of the blood could have been a life saving procedure and hospital authorities had surprisingly downgraded the ventilator settings.
The Judicial First-Class Magistrate, Ernakulam, while issuing summons to all the accused found that “there is a prima facie case and sufficient grounds for proceeding in respect of the offences u/s 18, 20 and 21 of the Transplantation of Human Organs Act, 1994 (pre-amended), against all 9 accused”. It was also noted that the doctors of the transplantation team visited the patient and conducted a liver function test way before the declaration of brain death.
The case became crystal clear when the wife of the liver recipient was shown as the donor in the Malaysian Embassy certificate, whereas the truth was that the liver of the victim had been transplanted.
There are several reasons why illegal organ transplantation occurs in India. In some cases, individuals desperate for organs may resort to illegal means to obtain them quickly. Organ traffickers take advantage of this demand, often targeting vulnerable populations such as impoverished individuals, refugees or people living in developing countries, who may be willing to sell their organs due to financial desperation. The organ most trafficked illicitly is kidneys.
One of the largest human organ trafficking cases in India was busted in 2003 in Amritsar, where it was claimed that Rs 1.5 billion was exchanged between the accused in a span of five years. Since 1995, around 2,400 kidney transplants took place at Kakkar Hospital, Amritsar. The donors, poor migrants of Uttar Pradesh and Bihar, were not given proper post-operative care, threatened with imprisonment and thrown out of the hospital after a week of the transplant, resulting in the death of six labourers.
In 2008, several people, including doctors and hospital staff, were arrested for an illegal organ transplantation racket at Apollo Hospital, Chennai. Another case was found where a man posing as a doctor illegally removed kidneys of many people from different states and transplanted them to high-paying patients in Gurgaon. Various other scandals related to kidney transplants were found in other states like the Hiranandani kidney transplant scandal, Mumbai (2018), Sundarbans kidney transplant case, West Bengal (2018), etc.
According to the World Health Organisation (WHO), organ trafficking is a commercial transplantation. It was estimated in 2007 that organ trafficking accounts for 5-10% of kidney transplants performed annually across the globe. In India, around 2,000 Indians sell their kidney every year. WHO estimates that one of every five kidney transplants is meant for the black market.
The director of Bachpan Bachao Andolan, Rakesh Senger, once found bodies of missing children without their vital organs. The police said that the organs must have been eaten by an animal. Senger reportedly said: “It is much easier to file a case of kidnapping and murder against unknown persons. If you accept the organs were missing, you have to do a thorough investigation. So, the details in such cases get murkier.”
While much is lacking to prevent this trafficking, the government is putting in some effort. It has allocated funding for the strengthening of existing and establishment of Anti-Human Trafficking Units around the country to prevent and intercept perpetrators and victims of human trafficking.
There is a need of around two lakh kidney donors in India; only 3% of this need is met through legal channels. Consequently, organ trafficking is likely to increase in India.
Rich countries must educate their citizens, especially healthcare professionals, on the significance of adhering to laws prohibiting the sale and trafficking of organs, as well as supporting altruistic live and cadaver donation. In India, this is yet to catch on.
—By Ritika Gaur and India Legal Bureau