Although the government claims that human organ transplantation, which has become a massive illegal trade involving crores of rupees, has been regulated, grey areas still remain. What started with “kidney” trading, in several cases even “kidney stealing”, has spread to the heart, liver and all conceivable human parts, compelling the passage of the Transplantation of Human Organ or Tissues Act 1994. This law prohibits any type of organ donation between unrelated persons. Yet, violators have been successfully bypassing the law.
This issue has once again come into sharp focus with the Delhi High Court dismissing a petition filed by two Pakistani nationals, one seeking to receive and the other willing to donate liver tissue for transplant. The donor and the recipient filed the petition that was rejected on the ground that the parties had failed to rule out the possibility of a commercial transaction between them.
A single-judge Bench of Justice Sanjiv Sachdeva, which dismissed the petition, said: “The petitioner has not been able to establish any link or connection or any affection or attachment or special reason as to why the donor has consented to donate the liver tissue to the recipient. The statute has to be strictly complied with to ensure that there is no trafficking or commercial angle involved in the transplantation of human organs or tissue.”
Section 9 of the Transplantation of Human Organs and Tissues Act, 1994, prohibits transplant of a human organ or tissue into the body of a person who is not a near relative of the donor. A relative is defined as the closest one like mother, father, son, daughter, sisters, brothers, wife/husband etc. In case the donor and the recipient are not near relatives, no such transplant can take place without a prior approval of the authorisation committee.
Rule 7 of the Transplantation of Human Organs and Tissues Rules, 2014, lays down the aspects the authorisation committee has to consider a few points before permitting such donations. For instance, the committee must evaluate that there is no commercial transaction between the donor and the recipient and that no payment has been made to the donor. It also needs to take into consideration the financial status of the donor and the recipient. The committee in the instant case had rejected their application, holding that there was no provision to permit the donation by a foreigner to another foreigner, if the two weren’t related. This position was upheld by the High Court.