Legal methods|1

Abstract: This research project features qualitative study on important parts of THOA
(Transplantation of Human Organs and Tissues Rules, 2014), problems with the present rules
and discusses various ideas for the betterment of the people who are in need of body organs.
The prime motive of this paper is to legalize the organ trading. This change in the
transplantation of human organs and tissues rule, 2014 will bring a major revolution in the
world of organ transplantation.

Introduction:

As time flows in Capitalism country, we realize that money is becoming a crucial part of
our life. Some people often risk their life for money. Is it worth legalizing organ
trading? Organ transplantation is when a person allows his healthy transplantable organs and
tissues to be removed, either after his death or while the donor is alive, and transplanted into
another person. Some of the commonly transplanted organs are kidney, heart, liver, pancreas,
intestines, lungs, bones, bone marrow, skin, corneas, etc.1 before they passed the
Transplantation of Human Organs Act (THOA) in 1994; India had a successful legal organ
trading market. Low costs and high availability brought in business from around the globe,
and transformed India into one of the largest kidney transplant centres in the world. However,
several problems began to surface. In some cases, patients were unaware that a kidney
transplant even took place. In other cases, patients were promised payments that were much
higher than what they actually received. These and other ethical issues pushed the Indian
government to pass legislation banning the sale of organs.2

The legislation called the Transplantation of Human Organ Act (THOA) was passed in
India in 1994 to streamline organ donation and transplantation activities. Despite the THO
legislation, organ commerce and kidney scandals are regularly reported in the Indian media,
many organ mafia complaints had been filed. In most instances, the implementation of the
law has been flawed and more often than once its provisions have been abused. Many of the
transplantation were done through black marketing. On the other non illegal side, it is not that

1
See, THO-Act, sec 2,page- 40,2014.
2
See also,http://news.nationalgeographic.com/news/2004/01/0116_040116_EXPLorgantraffic.html.
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easy to receive organs.3 In India, the rule is that people can only donate organs to people,
when the donor is alive, who are close relatives, spouse and loved ones.4 Now the problem is,
we are living in an era where peoples self concern triumphs affection for others. "In India
200,000 people need a new kidney every year and 100,000 need a new liver, but only 2 to 3
percent of the demand for new organs is met," said Vij, head of the Organ Retrieval Banking
Organisation (ORBO) at All India Institute of Medical Sciences(AIIMS).5 Thousands more
transplant candidates might be saved if more Indians signed organ donation cards, if more
families consented to donation of their loved ones' organs, and if medical personnel
approached the families of potential donors more often. But the supply of cadaveric organs
has been disappointingly flat. So in recent years, there's been a push to persuade living
Samaritans relatives, friends and even strangers to donate one of their kidneys. That's
helped, but not enough.6 So, India is filled with black marketing and huge number of patients
waiting for organs. To overcome organ shortage and abolish black marketing developed
countries are re-looking at the ethics of unrelated programs and there seems to be a move
towards making oragn trades an acceptable legal alternative.

Because of illegalizing organ trade two bad things happened: outrageous growth of black
marketing, which harms the society and drastic decrease in the available organs for
transplanting which doesnt allow doing well to the society. Organ trading should be
legalized for peoples welfare. Save poor people from economic crisis, reduce the organ
shortage, prevent black-marketing and safety of donors and receivers are the very important
reason for legalizing organ trading.

Prevent black-marketing and safety of donors and receiver:

Black marketing is not only illegal but also injurious to donors and receivers.

Black marketing is illegal and punishable in India. So, they cannot publish an advertisement
like organs needed for money . Organ harvesting is done secretly without the knowledge
of government and public. To harvest organs people are not only lured for money but also
injured and hurt.

3
See,https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779960/#sec1-1title.
4
See, THO-Act, sec 18, page- 43,2014.
5
See,http://www.ndtv.com/india-news/india-facing-acute-shortage-of-organ-donors-616190.
6
See also,http://www.npr.org/2008/05/21/90632108/should-we-legalize-the-market-for-human-organs.
 Legal methods|3

In India, organs are allowed to be harvested from brain-stem dead person. So, they have a
genius method with this big loop hole in our THOA. When carbon monoxide is inhaled too
much by a person, he will be brain-stem dead. By supplying moderate amount of carbon
mono oxide there wont be any trace of carbon monoxide in the body. 7 8
With this strategy
many innocent people are brain dead; their organs are harvested and sold for money. They are
convicted under IPC section 299 (culpable homicide), section 300 (murder) as in THO Act
1994 brain-stem death was accepted as a form of death even though heart and the body is
alive, which ultimately means murder.9 Plus they are also punishable under IPC section 324
(voluntarily causing hurt by dangerous weapons or means) as this section declares voluntarily
causing hurt or death by means of any poison or any corrosive substance which is deleterious
to the human body. In this case, carbon monoxide is the poisonous gas inhaled. This is one
such technique used to obtain organs for black marketing.

They also use unprescribed hospital and unprescribed doctor to steal organs like kidney and
liver form random patients without ever their knowledge which is punishable under IPC
section 378(theft) and section 382 (theft after preparation made for causing death, hurt or
restraint in order to the committing of the theft). Many of the organ stealing is done by
doctors who are unqualified to operate the organs which will injure the donors sometimes
fatally. Sometimes they dont have required equipments and storage facility. 10
This will
damage the organs. India is already in organ crisis, now we cannot afford to lose more organs
like this. On the black market, donors may not get sufficient post-operative care.11 Using
legalized organ markets, both the donor and recipient would have more protections than they
would on the black market12
These people lure weak group of people to sell their organs for black marketing which is a
bad influence on people. This bad influence itself is a crime. It doesnt stop here.

7
See, http://www.emedicinehealth.com/carbon_monoxide_poisoning/article_em.htm
8
See also,https://medicalgasresearch.biomedcentral.com/articles/10.1186/2045-9912-4-13
9
See, THO Act, section 6,page-41,2014.
10
See also, THO act, sec 24 ,26 ,page-45-47,2014
11
See,http://www.wsj.com/news/articles/SB10001424052748703481004574646233272990474?mg=reno64-
wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052748703481004574646233272990474.h
tml#mod=todays_us_weekend_journal
12
http://www.economist.com/node/8173039?story_id=8173039
 Legal methods|4

Donors who sell their organs for money are being exploited tremendously by the middle man.
In black market organs are worth of high value. Bone marrow costs 23,000$ per gram,
surrogate wombs costs about 25,000$, corneas costs about 24,400$, heart costs about
997,700$, liver costs about 557,100$ and kidney costs about 15,900$.

Theoretically, body is worth up to $45 million dollars but thats only if every usable organ is
harvested. Many of the illegal organ harvesting is done without the consent of the donor.
Even if the consent is given, because of economic weak of people, these people are being
exploited very badly. The kidney is worth of 15,000$.13 Many innocent people who donated
their kidney or some other organs are paid with few hundred dollars. They are exploited by
the middle man. These middle men swindle most of the money and the donors are the
slaughter goats who are being exploited. Here, the middle men in black market violate the
basic fundamental rights of the citizen of India, which, is right against exploitation.

People who illegally trade organs in black market are punishable le under IPS section 299,
300, 324, 378 and 382. They also violate the fundamental right right against exploitation.
Because of black marketing the donors and receiver are injured, murdered and exploited.
Innocent people are damaged. If organ trading is legalized, even if black marketing cannot be
abolished, but they can be reduced drastically.

Now the question arises, how come black market will be reduced if organ trading is
legalized?

Black market will be of need only if people need it. If government itself come forward to
trade organs without the motive of profit making .For example, if government gives water
and another group sells illegal water. Now why would people buy illegally sold water? So, no
one will go for black market any more, if and only if, organs are sold by government without
profit intension. This is completely for the welfare of the people.

Moreover, by abolishing black marketing no more people will be injured, killed or exploited.
Since government is only one to trade organs, they wont and cannot exploit the donors.

13
See also,http://www.financedegreecenter.com/black-market-body/
 Legal methods|5

Save people from economic crisis:

Being paid doesn't nullify altruism doctors aren't less caring because they are paid. With the
current system, everyone gets paid except for the donor.

In 2014, 3,906 people have suicide in India. This is increasing every year. Many of the poor
suicide along with their families and there are thousands more who die of starvation. They
should be given a chance to at least save their family. They should be allowed to sell their
organs so that they can sustain themselves and their family. Immediately, the first thing we
wonder, how someones health or lives can be compensated. This can be explained with the
case law saint Christopher case supported byinevitable necessity.

In the early 17th century, seven Englishmen in the Caribbean embarked on an overnight
voyage from Saint Christopher, but were blown out to sea and lost for 17 days. During this
time, starving, they cast lots to see who would sacrifice his own life for the others. The lot
fell to the man who had suggested the scheme, and he consented to his subsequent killing.
His body sustained the rest until they made their way to Saint Martin. They were returned to
Saint Christopher where they were put on trial for homicide. The judge pardoned them, their
crime being "washed away" by "inevitable necessity". Though this case was cited in defence
of Dudley and Stephens, it was reported only anecdotally some years later in a medical work
and not in the law reports.14

From this we know that for the survival some compromise has to be done. If a person donates
the entire organ he could then minimum of 7 people can survive. In our case, it is either the
whole poor family and the people who are in need of organs die or one member of the family
sells his organs and the rest survives. This is an indirect case of necessity.

Hence legalizing organ trading could help poor section of people to lifting themselves and
reduce suicide rate.

14
saint chrisropher case.
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Reduce the organ shortage:

As mentioned, "In India 200,000 people need a new kidney every year and 100,000 need a
new liver, but only 2 to 3 percent of the demand for new organs is met," said Vij, head of the
Organ Retrieval Banking Organisation (ORBO) at All India Institute of Medical Sciences
(AIIMS). Most of the patients who need organs are waiting forever. They either use modern
medical technology for survival, which cost much more the cost of organs, or eventually die.
Now we are very much in the need of raising the organ donations. This can be done by
legalizing the organ trading.

A theory can be trusted only when it practically happened, so now lets take a case where
organ trading is legal.

All over the world Iran is the only country where organ trading is allowed.

The practice of selling one's kidney for profit in Iran is legal and regulated by the
government. In any given year, it is estimated that 1400 Iranians sell one of their kidneys to a
recipient who was previously unknown to them.15 Iran currently is the only country in the
world that allows the sale of one's kidney for compensation (typically a payment);
consequently, the country does not have either a waiting list or a shortage of available
organs.16 The Charity Association for the Support of Kidney Patients (CASKP) and the
Charity Foundation for Special Diseases (CFSD) control the trade of organs, with the support
of the government. These not-for-profit organizations match donors to recipients, setting up
tests to ensure compatibility. The compensation paid to the donor varies, but an average
kidney donor is paid $1200. Some donors are also offered employment opportunities. Charity
organizations support recipients that cannot afford the cost of the organ.17

This is the biggest proof that legalizing organ trade will definitely workout without any fault.

15
See, http://news.bbc.co.uk/2/hi/programmes/this_world/6090468.stm
16
See also, http://www.economist.com/node/8173039?story_id=8173039
17
See,http://www.wsj.com/news/articles/SB10001424052748703481004574646233272990474?mg=reno64-
wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052748703481004574646233272990474.h
tml#mod=todays_us_weekend_journal
 Legal methods|7

How the rule should be amended:

Organ, which if removed from the donor not will be fatal, can be sold only to the
government, no private company is allowed trade organs. Removal of organs which will
cause death to the donor can be allowed in special case with the detailed inspection of the
Authorisation Committee signed by president. Every donor should be given a time of 6
months before donation to avoid Impulsive unthinking donations. In case of close relation
instant transplantation can be done, with or without compensation of money is up to the
donor. Before the donated organ is transplanted, both donor and receiver will not be allowed
to know whose organ is going to be donated to whom to prevent forceful selling of their
organs. Organ tourism is allowed only when the country is self-sufficient or organ is being
donated by a close relative or spouse.

Analysis of the law which should be amended:

Prime motive of this law is to legalize the organ trade in India. There are many organs in our
body we can donate which is not fatal. Only those types of organ are allowed to the traded.
Here, traded means selling the organs to the government and then the government will sell
these organs to the required patients. No other private or public companies can trade organs.
if done it is punishable under this amended law. Removal of organs which ends up in fatal for
the donor is allowed only in some special case with the detailed discussion of the
authorisation committee signed by president. Every donar should be impulsive or unthinking
donations could be prevented via a written consent with a compulsory waiting period. Non-
compensated organ donors may equally make impulsive donation decisions. This time period
is one of the important feature of this rule. In case of close relation instant transplantation can
be done, with or without compensation of money is up to the donor. This will help the
transplantation within the family. Both donor and the receiver will not be allowed whose
organ is being transplanted to whom. This is the best part of the whole act. Because of this
there can be no forceful selling of organs. The only way donor decides to sell his organ will
be of his own consent. According to right to information act, donors are allowed to know
what happened to their organ. This rule states that they will not be allowed to know only
before the organ transplantation. So, after the transplantation they have all rights to know
w1ho the donor and receiver is. Organ tourism means trading the organs with the foreigner.
There is no harm in trading with the foreigner but not while our own country is in need.
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When we are self sufficient organs can be traded with the foreigner. If the donor is close
relative or spouse and willing to donate organ trading with the foreigner can be allowed.

Conclusion:
It is pertinent to know that organ donation is more important than mere living. That too when
the law gives a better hand to this institution it achieves greater height than it had already.
The amended law as stated in the previous section gives more value to the organs and
affirmatively to life. Legalising not only helps those who are in immediate need of organs, it
also helps them not to fall in the exploitative hands of the black market goons. It is of utmost
importance to the nation. Since India is well populated and considering the fact that India is
also facing scarcity for organ donors, it is time to make the available resources efficient and
make it meet the needs of the common people. Forceful extortion of organs is prevented to
the maximum extent. The prime key factor of this amended law is that it gives time to the
donor to prevent impulsive and less deliberate decisions.

Nothing in this world are hundred percent correct and takes place with hundred percent
efficiency. So it can thus be concluded that legalising organ trade also faces the same
situation but it may be sure that if it is into effect, then we may create better scenario than the
existing one.