The recent spurt of kidney commerce at leading hospitals in India has once again brought into focus the problems of kidney shortage that results in such scams. Despite a stringent Transplantation Law in India these scandals keep resurfacing at regular intervals. There seems to be no easy answer to this difficult problem. Most police complaints take place due to the kidney donor not being paid the promised sum. When such an incident happens and there is a media outcry, there is a knee jerk reaction and the blame game starts. The public and the media indirectly tries to implicate that the doctors are involved. However all parties think it is not their job to decide if there was a motive to donate for money rather than out of altruism. The doctor’s think it is the responsibility of the government or the hospital’s authorisation committee that has granted permission for the transplants to take place to check the relationship and check for commerce intent. The hospital management thinks it is a problem of the doctor and patient. The authorisation committee on the other hand assues that the responsibility to determine relationship is that of the doctor and the hospital.
Most commercial transaction happen due to a small loophole in the current ‘Transplantation of Human Organ Act.’ The provisions available in Sub Clause (3), Clause 9 of Chapter II of the act states that- “If any donor authorizes the removal of any of his human organs before his death under sub-section (1) of Section 3 for transplantation into the body of such recipient, not being a near relative as is specified by the donor, by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the Authorization Committee”
This section of the law has been misused or misinterpreted, since the act was passed. The donor needs to show ‘affection’ to the recipient and convince authorisation committee that gives clearance for such transplants. When there are 15 to 20 families awaiting clearance and the authorisation committee has only an hour to spend for the interviews and do all the paper work, they hardly have adequate time to go into great details of why the donor is donating, what is the financial status of the donor, does the donor understand the risks involved in surgery or does the donor have a health insurance policy. Establishing ‘true affection’ can also sometimes be a tricky for the committee. For example if a driver or a servant serving his master for 20 years comes forward for kidney donation, can the committee doubt his affection? And subsequently if cleared and the master awards the driver or servant some money how can one prevent such private transaction. There are also genuine cases of affection where a friend has donated to another friend or a cousin has donated to a relative or a mother-in-law to daughter-in law or son-in-law and so on.
However, what is not acceptable is when a total stranger suddenly appears and wishes to donate, this is where the commerce angle should be suspected.
With smaller families and rising lifestyle diseases many families have genuinely no one available who is eligible to donate. Many a times the authorisation committee will overlook such cases and sometimes sympathising with the recipient provide clearance for the case in what is clearly likely to lead to commercial transaction. It is these type of cases that get into problems and result in kidney scams. This is easily preventable. Another is where there is falsification of all documents to show relationship. In this type of offence the lawmakers seldom realise that the current amended law views both the recipient and the donor as criminals and both can be fined and arrested. This has been done in the Mumbai Hiranandani case where the hospital administrator, doctors, recipient, donor, the broker and a few others were jailed.
The clause of ‘affection’ may have been included so that genuine cases are not deprived of a donation and transplantation. However the clause has been more often abused and will possibly continue to be exploited in the future. Meanwhile what is required for transplanting hospitals is to have its own counselling team who spend enough time with the donating family and kidney donors to understand the family dynamics before they are presented to any committee. A preliminary report from such counsellors can help the committee coming to a decision. There are tools available in such donor interviews that can unravel any misgivings and the experienced counsellors will pick out such cases and prevent them from proceeding any further.