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SOCIAL SERVICES -
Kidney Racket in India
Last week, police in Gurgaon, India a suburb of the capital Delhi, raided a house, which was used to carry out illegal kidney transplants. Trade in human organs is banned in India but many continue to sell their kidneys to clients, including Westerners, waiting for transplants. Gurgaon is an affluent suburb of Delhi, home to high-rise apartment blocks and call centers. It is here, in a nondescript house, that many poor labourer’s were lured from across northern India and bribed into selling their kidneys, according to the police. For this they were allegedly paid up to $2,500.
The clients are said to be wealthy Indians, and even some foreign visitors, who were in urgent need of a kidney transplant and willing to pay large sums for it. Last week, the police raided the illegal clinic after being tipped-off by a victim. Four people were arrested but the main person alleged to be behind the racket, a doctor, is missing. Despite the alert sounded at all major airports to prevent the main culprit from leaving the country, he disappeared without a whisper. It is only when red corner notice was issued by the Interpol against him he was handcuffed from some resort in Nepal. It is astonishing that despite banning the trade in human organs, India continues to be one of the major centers of the trade. That for years, India has been known as a "warehouse for kidneys" or a "great organ bazaar" and has become one of the largest centers for kidney transplants in the world, offering low costs and almost immediate availability. In a country where one person out of every three lives in poverty, a huge transplant industry arose after drugs were developed in the 1970's to control the body's rejection of foreign objects. Renal transplants became common in India about thirteen years ago when the anti-rejection drug cyclosporine became available locally. The use of powerful immuno-suppressant drugs and new surgical techniques has indirectly boosted the kidney transplant activities.
The dramatic success rates of operations, India's lack of medical regulations and an atmosphere of "loose medical ethics" has also fueled the kidney transplant growth. The result has been that "supply and demand created a marriage of unequals, wedding wealthy but desperate people dependent on dialysis machines to those in India grounded down by the hopelessness of poverty". That the pace of demand for kidneys hasn't kept up with the demand. Consequently, the poor and destitute, victims of poverty, have either willingly sold their kidneys to pay for a daughter's dowry, build a small house or to feed their families or have been duped or conned into giving up their kidneys unknowingly or for very little sums of money. Ironically, medical technology meant to advance and save human lives has been abused to such lengths, that in some cases, it has resulted in the death of innocent individuals. That most countries require living donors to be family members, or that organs must be removed from cadavers, usually accident victims. Because of the stringent rules regarding organ transplantation in other countries (specifically, that it is illegal and unethical to remove kidneys from a live donor, especially for money), and the shortage of kidneys, India has become (along with China) an "international center" for the transplantation of kidneys. Furthermore, until recently, with the passage of the Organ Transplantation Act in 1994, there was not any legislation prohibiting the sale of organs in India. That due to the naiveness and desperation of poor, along with the fact that donating a kidney isn't particularly risky as it does not impair one's health, kidneys have become easily available in India. Combined with low costs and the emergence of an illegal kidney black market which caters to the kidney buyers from around the world, many foreigners and the rich in India have taken advantage of and benefitted from the kidney trade.
Only in January 1995, did the kidney scandal come to the surface through a series of incidents which received wide media coverage and prompted public outrage causing the Indian Congress to pass legislation banning kidney trade. On January 15, 1995, Customs officers in Delhi uncovered a "kidney tour" racket in which donors were enticed to go abroad for removal and subsequent transplant of their kidneys. Hundreds of donors were believed to have gone on such kidney tours. On January 23, 1995 it was discovered that residents of a rehabilitation colony for leprosy patients near Madras, were found to freely donate kidneys for money offered by agents. Then, on January 29, 1995, police busted a massive racket in Banglore, in which the kidneys of nearly 1,000 unsuspecting people had been removed in a leading city hospital by prominent doctors. The "donors" had been lured with offers of jobs and their kidneys removed under the pretext or removing blood. That incidentally, doctors involved claim that it is not possible to remove kidneys without the patient's consent as it involves a series of tests administered over a span of ten days. What's more, police were bombarded with a whole host of "victims" claiming to have had their kidneys removed unknowingly or to have been paid only a fraction of what they had been promised. In another twist to this story, there were reported incidents were "victims" blackmailed or harassed doctors to pay or face the consequences. The kidneys were destined for patients from the Middle East and Far East.
A similar kidney racket was discovered in a nursing home in Bombay soon after implementing a host of people ranging from police, doctors, other medical personnel, international kidney brokers and agents, consulate members etc. That as a result of the uncovering of this scandal, Parliament passed a law to curb the kidney trade. With the eruption of the kidney scandals in India's major cities, the Congress passed Act 42: The Transplantation of Human Organs Act in order to block the trade in human organs. This law prohibits all commercial trading and allows organs to be removed only for therapeutic purposes. Furthermore, it bans all organ transplants, except those donated by relatives (specified as spouse, son, daughter, father, mother, brother or sister) and states explicitly that organs can only be removed from brain-stem dead people. Thus, this law makes it illegal to donate a body organ to anyone outside one's immediate family and requires that proof of familial relationship be shown when donating an organ. That the effectiveness and viability of this law in India however, is questioned by many for various reasons. Since individual states are responsible for health matters, their local assemblies must adopt the legislation and only three have done this so far (Maharashtra, Goa, and Himachal Pradesh). The kidney trade still flourishes in those states (neither Karnataka, which includes Banglore, nor Tamil Nadu, which is the home of many donors) which haven't endorsed this Act. Given this break between federal and state law, it is difficult to implement the cadaveric organ transplantation alternative that the law envisions.
The punishment for selling an organ has also come under heavy criticism. As it stands, selling an organ is punishable by up to seven years in prison and provides a fine of Rupees 10,000, about 300 U.S. dollars. Many feel that this punishment is "paltry", considering the lakhs (hundreds) of rupees that change hands in every illegal transplant. Other complaints center around legal loopholes and shortfalls of the law. These range from cases where persons could be taken out of the states that have endorsed the law for illegal donations of their organs, the view that this may encourage "kidney marriages" since spouses are included in the definition of near relatives who can be organ donors, the lack of infrastructure (there are no intensive care units which can supply cadaver kidneys or provide for the storage for brain-dead cadavers, poor transportation system which makes it difficult for the timely retrieval of organs) to implement the cadaver transplantation, India's hot climate which makes it hard to store and preserve kidneys and the lack of trained cadaveric transplant surgeons. That moreover, it is estimated that in India, there are estimated 80,000 people with severe renal failure, and the 650 dialysis units available are insufficient to support the need. There seems to be a time lag where the country's infrastructure needs to catch up in order to meet the cadaver donation alternative that the law offers. Without a computerized country-wide database on recipients, as well as an efficient transportation system involving helicopters and aeroplanes to rush the organs to recipients this has become a major criticism of the law. Moreover regarding the clause that only family can be donors, there are often special reasons (in cases where there is a history of diabetes or cardiac conditions in the family) why family as possible donors, is not always a feasible option. For these people, maintaining the increasing costs of dialysis, enduring the pain and suffering of family members awaiting kidney transplants, and possibly losing their loved ones because family members are unable to donate a kidney, Act 42 has brought about much outrage.
Therefore, as the law currently stands, the aim of curbing kidney trade in India is no more possible now than it was before the law was enacted and passed. That as to the international law on organ trade in India, the World Health Organization has stated that it is "deeply concerned with the 'immoral' traffic of organs, [including kidneys] and has urged member countries to ban it (Chandra, p.53). Recently, pressure from a number of international medical societies, such as the International Transplant Society and the Middle East Transplant Society, has caused reputable Indian transplant surgeons to stop operating on foreigners. That given the fact that India has become the "world's largest reservoir of live kidney donors", the passage of the Organ and Transplantation Act heralds the government's desire to block the kidney trade. However, the effectiveness of this law in actually curbing trade is seriously and inarguably hampered by the legal system in India which gives states the responsibility of health care. Despite efforts from the federal government to encourage individual states to ratify the law, only three states have endorsed it. Thus, the kidney trade still flourishes, openly and clandestinely. That until recently, when the kidney scandals brought to the fore, the deficiencies in India's organ trade laws, the sale of body organs, including kidneys, was legal. This inadvertently, helped the commercialization of the kidney trade for both Indian and foreign kidney patients. That aim of Act 42, optimistically speaking, was to restrict the commercialization of the kidney trade. However, there is much discord about the viability and legality of the Act. According to one Bombay politician, "kidneys should come under export regulations" (Max). The crucial question is whether a human organ could be considered as "goods". That under the existing definitions, transplanted kidneys would probably not attract the provisions of the Exchange Control Act. Medical and legal experts do not agree among themselves on this subject, where some feel that a kidney in someone else's body could not be described as "goods". As it stands, Act 42 makes it illegal to trade/sell kidneys to anyone who is not a relative. However, given that states have handle their health matters, different states could have different views on this Act. This is evidenced by the fact that only three states have endorsed the Organ and Transplant Law thus far.
That the Voluntary Health Association of India estimates that each year more than 2,000 people sell their organs for money (compared with 500 in 1985 and barely 50 in 1983. Those receiving a kidney typically pay from $6,000 to $10,000 (approximately $1,980-$3,300 U.S. dollars) for the kidney and the transplant operation - of that, the donor gets about $1,000 (U.S. $330). The U.N. Human Rights Commission said in a 1993 report that more kidneys were sold in India than anywhere else to buyers from developed countries. Since the introduction of cyclosporine, at least $7.8 million has changed hands in connection with the estimated 4,000 kidney transplants performed in Bombay (Los Angeles Times, "Kidney..."). At least one lakh (100,000) Indians suffer from renal failure and an average of 80 new cases per million population crop up every year. Prices for kidneys range from Rs.30,000 to Rs.70,000 (U.S. $9,900-$23,000) with a Rs. 20,000 (about $6,600 U.S. dollars) cut for brokers and middlemen. That many doctors are worried about the long-term consequences of these activities as a major concern, they point out that in Bombay, a number of HIV positive patients are now trying to sell a kidney in order to earn a living. Says one doctor, "for every donor identified as HIV positive, five slip through the net, putting many lives at risk. That cultural ethos and religious beliefs are entirely different from the West. In India, religious beliefs generally discourage practices such as stockpiling and collecting organs from cadavers. Moreover, it is hard to convince relatives to donate the organs of loved ones even when the heart is still beating. A brain dead person, kept "alive" by life-support systems, will look completely normal...the cadaver's heart will beat; it will sweat...relatives will therefore find it impossible to accept that the person is really dead - and will certainly not allow the removal of organs. That furthermore, it is not culture per se, as it is the culture of poverty that perpetuates the kidney trade in India. In a country where millions suffer from abject poverty, the allure of "easy money", gained by selling a kidney, becomes an easy trade-off for the poverty-stricken individual. Given these circumstances, trying to curb the kidney trade may prove to be more detrimental for India's destitute who struggle to survive can be bettered with the money they can obtain by selling a kidney. It is easy, according to American values and standards to denounce the sale of kidneys for money as a deplorable and immoral practice but given the fact that the poor in India, don't have the liberty of being altruistic because of their harsh existence, the distinction between ethics and survival becomes blurred. That clearly, the kidney trade in India, carries with it many moral and ethical dilemmas which make it difficult to ascertain whether the sale of a kidney organ to save another's life and to perhaps, help the donor better his life, makes this practice justified.
However, what is unmistakable is that the procurement and sale of kidneys from unknowing poor and the desperate destitute is a violation of the fundamental right that every individual is implicitly granted at birth - this being the right to one's body. Furthermore, where the poor are "induced to sell their body parts to meet the transplant needs of high-paying customers, largely from the developed countries,...[the trade in human organs] has been widely condemned because of its financially exploitative nature and its abuse of medical ethics. By keeping this mind one petition has been flied in court of law to make suitable amendments in the human transplantation Act by keeping the interest of pubic at large.
Share Pain of Little Vishesh Gupta
PIL in Hon'ble Delhi High Court
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