Organ Trafficking as a Criminal Offence in India-An analysis of the Indian Legal Framework: Jayanta Boruah

ORGAN TRAFFICKING AS A CRMINAL OFFENCE IN INDIA: AN ANALYSIS OF THE INDIAN LEGAL FRAMEWORK

North-Eastern Hill University

Research Scholar

ISSN: 2581-8465

ABSTRACT

Organ trafficking like other human trafficking is a serious offence causing gross human rights violations across the world. In India, also it is alleged to have increased at a large scale, since a majority of Indian population is still under absolute poverty as well as due to the poor economic growth of the Nation such offences are expected to have emerged with a serious and highly influential nexus. For dealing with such serious offences, laws were enacted in India but there appears to be a gap between the objectives aimed by such legal framework and the outcomes achieved through their implementation till now. In this paper therefore, an attempt has been made to understand the nature of the offence of organ trafficking in India and the laws enacted to deal with such offences. At last the paper concludes by highlighting few of the major defects in the Indian laws relating to organ trafficking along with suggesting amendments to be made in such laws.

KEYWORDS

Criminal Offences; Organ Trafficking; Right to Health; and Trade

INTRODUCTION

In India, although Right to Health was not guaranteed as a Fundamental Right under Part III of the Constitution of India, it was provided as a requirement for the Governments to adhere to by virtue of Directive Principles of State Policy and so were made non-justifiable by the Framers of the Constitution, may be due to the poor economic infrastructure of the Country during that time.[1] However, the Indian Judiciary by virtue of Judicial Activism has interpreted this Rights as a Fundamental Right under Article 21 of the Constitution through several judgements delivered from time to time in cases brought before it.[2] Further, the Constitution also acknowledges the Right of a person over his/her own body as a basic Fundamental Right.[3] At such a situation, organ trafficking might not only violate the victim’s Fundamental Right to live a life with dignity but might also cause serious consequences to such person’s life and health.[4] It is reported in a WHO Report that India is the largest exporter in the course of International Organ Trade[5] and there arises no doubt in the fact, that most of them will come under the category of illegal organ trading leading to organ trafficking. Since demand for human organs are increasing world-wide[6] therefore offences related to organ trading is also expected to reach a significant height of human rights violation especially of the poor and the marginalized sections of the society. It is alleged that several influential professionals starting from Doctors, Politicians, Ambulance Drivers, etc. are involved in such offences for which getting hold of such offences becomes even more difficult.[7] This paper will therefore aim to study the nature of organ trafficking in India and the manner the Indian legal framework is trying to deal with it.   

MEANING AND NATURE OF ORGAN TRAFFICKING

            Organ trafficking was first defined by Declaration of Istanbul 2008, according to which organ trafficking included- recruitment, transfer, transport, harboring or receipt of living or deceased persons or their organs by either applying force, coercion, fraud, deception, or by any other such illegal means for gaining payments or any other wealth from third parties through such exploitations of potential organ donors.[8] According to the Council of Europe Convention against Organ Trafficking, organ trafficking involves the following elements-

  1. Removing human organs from either living or deceased persons without having a free and prior informed consent of such persons or in violation of the domestic laws where such trafficking takes place;
  2. Using these organs for implantation purposes;
  3. Includes activities like- storing, preserving, transferring, transporting, importing, exporting and receiving such organs;
  4. Abetting in commission of such offences or intentionally attempting to commit such offences;
  5. Such offences also include solicitation or recruitment of organ donor for monetary or commercial gains for the one who is soliciting or recruiting or for any third party;
  6. It even includes offering, promising, or giving any undue advantages to persons involved in healthcare services for the purpose of causing any removal or implantation of human organs in any of the illicit manner as defined above; and
  7. At last it also involves receipt or demand of any undue advantages by such healthcare personals for the purpose of causing any of the illicit activities as provided above.[9]

In India any kind of commercial transaction of human organs is illegal under the law until and unless such organ transplantation is legally permitted by the Indian Legal Framework.[10]

INDIAN LEGAL FRAMEWORK ON ORGAN TRANSPLANTATION AND TRAFFICKING     

            Organ Trafficking in most cases is also linked with human trafficking and Right against exploitation has been granted as a Fundamental Right under the Constitution of India.[11] Under this no one in India can be subjected to illegal trafficking. Further, as mentioned above Right to Health and Right of a person over his/her own body has been declared as integral part of Article 21 which provides every Indian citizen the Right to live a life with human dignity. Under IPC, Section 360 provides for offences related to kidnapping whereby if any person commits trafficking of children for the purpose of organ trade may also be penalized under this Section[12] along with the provisions of Transplantation of Human Organ Act, 1994.[13]

            The Transplantation of Human Organ Act of 1994 aimed for regulating organ transplantation amongst humans so that the lives of individuals can be saved from death due to organ failures by encouraging organ donations or by regulating such donations amongst the near relatives out of love and affection. The Act provides for consensual donation in cases of cadaver donors and even the kin of deceased has been given the authority to donate organs if the deceased has not objected for such donations in his/her lifetime.[14] However, such a consent will be of no use if the family of the deceased do not approve such donations.  Section 9 provides for organ transplantation between near relatives with the approval of Authorizing committee where it has been found that in cases where a patient does not have a near relative will be excluded from getting an organ. Similarly, there are several limitations in this Act that fails to address to the ever-increasing demands for organ donations which in turn results in organ trafficking.[15] Besides all these limitations, this Act however managed to introduce the concept of brain deaths in the Indian Legal Scenario, and made all kinds of organ transplantations including commercial or any other beneficial means of exchanges illegal in India, thus prohibiting trade of human organs.   

            In order to remove the shortcomings of the Act of 1994, an Amendment Act was passed in the year 2011. The provision of the Act was then extended to West Bengal. Under the new Act, even living persons are also allowed to donate organs. It has been made mandatory for the Doctors to inform their patients about the option of organ donation, either to give consent or to withdraw for such donations, failing of which will make the Doctors liable for punishments under this Act.[16] However, the new Act is also not free from criticisms, since the role of the Authorizing Committee is yet not clear and the concept of brain death is also not known to many medical professionals as well as a very limited infrastructures are available in most of the Public Hospitals in the rural areas to make arrangements for securing most of the provisions of these laws.[17]   

INSTANCES OF ORGAN TRAFFICKING IN INDIA

            From the definition of organ trafficking and the legal provisions provided above, it becomes clear that any kind of commercial transaction of human organs done illegally will amount to organ trafficking. As such, India is regarded as the largest trader of kidneys in the world[18] where the first successful kidney transplantation in India took place in 1967 in Mumbai.[19] After the enactment of the Act of 1994, although it was expected to reduce organ trade thereby limiting organ trafficking, it was found that the Act provided certain scope for illegal organ trading coupled with corruption. It is alleged that the Authorization Committee established under the said Act approved organ transplantations under Section 9(3) of the Act on the basis of an Affidavit filed by the applicant, but later on it was found that there was no love and affection between the organ donor and the receiver.[20] Moreover, a Report held that around 3000 kidneys were sold in Tamil Nadu where the donors did not receive the amount that was actually promised to the sellers.[21] The famous case of Amit Kumar highlighted the extent of illegal organ trading that exists in India where many laborers were treated as live donors by providing them with fake promise of paying 3 lakhs of Rupees, while it was alleged that Amit Kumar used to charge approximately $ 50,000 for each operation and it was also revealed that he made 500 such illegal transplantation.[22] It was even found that around 2000 Indians sell a kidney each year, while a NGO named- Bachpan Bachao Andolon held that they often found dead bodies of children with missing organs, but the Police often use to register such cases as kidnapping since according to them, it becomes easy for the Police to lodge a complaint of kidnaping and murder against unknown persons rather than investigating for organ trafficking.[23] A Human Rights Report stated that around 44,000 children are recorded missing each year in India, a majority of which is for the purpose of organ trafficking.[24]

CONCLUSION AND SUGGESTIONS

            Organ trade has been increasing since there is only 0.6% of donors against 1 million population[25] and where there is a need of about 150,000 – 200,000 donors of kidneys, only 3,500 are being able to be managed.[26] This is going to increase the number of instances of organ trafficking in the coming years. An analysis of the Act of 1994 along with the Act of 2011 provides that it has not been made uniformly applicable across India, since Health is a subject-matter of State list.[27] This has also provided scope for illegal organ trading in India for which an uniform law is needed having jurisdiction across India that can be done by the Parliament by invoking Article 249 and 252 of the Constitution. Further, the consent of the diseased in cases of cadaver donations has been made immaterial by providing for the concept of family consent as well as of the person holding custody of the dead body. In India, due to existing religious and superstitious beliefs, it will be difficult for getting consent of the deceased’s family, even if the deceased provides for organ donations. As a result of which, the rate of organ donations is subsequently dropping down after the passing of the Act of 1994, since in most cases it is found that the family of the deceased does not allow for removing organs from the deceased even if the deceased has provided consent for such removal during his/her lifetime.[28] As such, the law shall give more importance to the consent of the deceased since it’s the right of the deceased to take a decision over his/her body which shall not be violated if such deceased took a decision for donating his/her organs after death, only for the purpose of securing family approval on moral grounds. Moreover, Section 9 has been alleged to have provided scope for illegal trading by allowing organ donations amongst the near relatives since it gives authority to the Authorizing Committee to deal with such cases. It has also been alleged that this Act has failed to address to the demands for organs from those patients who do not have any near relative for donating organs.

            It is very essential in India to spread awareness regarding organ donations in order to meet the increasing demands for organ transplantation. Further, the law needs to be clearer regarding the functioning of the Authorizing Committee in order to curb corruptions. It is also essential to adopt mechanisms for increasing transparency in medical activities, in order to get hold with the nexus involved in organ trafficking.      


[1] Dr. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA, 23-30 (Central Law Agency, 51st, 2014).

[2] Parmanand Katara v. Union of India AIR 1989 SC 2039; Indian Medical Association v. V.P. Santhan, AIR 1996 SC 550; and Paschim Banga Khet Mazdoor Samiti v. State of West Bengal, AIR 1996 SC 2426.

[3] Dr. Anju Vali Tikoo, Transplantation of Human Organs: The Indian Scenario, 1, ILI. L. Review, 147, 147-174 (2017).

[4] Ibid.

[5] Yosuke Shimazono, The state of the international organ trade: a provisional picture based on integration of available information, WHO (Jun 01, 2020, 11:12 PM) https//www.who.in/bulletin/volumes/85/12/06-039370/an/

[6] Ibid.

[7] Sanjukta Bhattacharya, Laws Relating to Human Trafficking: Combatting Organ Trafficking, SSRN (Jun 02, 2020, 01:12 AM) http://ssrn.com/abstract=2019001

[8] The Declaration of Istanbul on Organ Trafficking and Transplant Tourism, 3(5), Olin. J. Am. Soc Nephrol, 1227, 1227-12231 (2008).

[9] Council of European Convention against Trafficking in Human Organs, CETS No. 216, 2018.

[10] Bhupinder Singh, Regulatory Framework for the Human Organ Trafficking in India, 1(1), IHML., 5. 5-8, (2018).

[11] Supra n 1, at 342.

[12] Indian Penal Code, Act No. XLV of 1860, Acts of Parliament (India).

[13] The Transplantation of Human Organ Trafficking Act, 1994, Act No. 42 of 1994, Acts of Parliament (India).

[14] Id, Section 3.

[15] Supra n 3.

[16] The Transplantation of Human Organs (Amendment) Act, 2011, Act No. 18 of 2011, Acts of Parliament (India).

[17] Supra n 7.

[18] Jayant Prakash Patel, Organ Transplantation and the Legal Prospects, LSI (Jun 11, 2020, 03:12 AM) https://www.legalserviceindia.com/articles/1279/Organ-Transplantation.html.

[19] Parul Chopra, Doctor NDTV Cadaver Organ Donation in India, NDTV (Jun11, 2020, 03:17 AM) http://doctor.ndtv.com/storypage/ndtv/id3774/type/feature/Cadevar_organ_donation_in_india.html.

[20] Sandhya Srinivasan, Will the law against organ trade remain a moral victory?, InfoChangeIndia.Org (Jun 11, 2020, 03:43 AM) http://infochangeindia.org/health/analysis/will-the-law-against-organ-sale-remain-a-moral-victory.html.

[21] Coercion in the Kidney Trade? A Background Study in Trafficking in Human Organs worldwide, Sector project against trafficking in women, GTZ (Jun 12, 2020, 01:11 AM) http://www.gtz.de/de/dokumente/en-organ=trafficking.2004.pdf.

[22] Neha Pant, The Fall, rise and fall of kidney racket Kingpin Dr Amit Kumar, HindustanTimes (Jun 12, 2020, 02:20 AM) https://m.hindustantimes.com/india-news/the-fall-rise-and-fall-of-kidney-racket-kingpin-dr-kumar/story-hgMheixL8H9I6k1KTNeNCN.html.

[23] Ashwaq Masoodi, Why organ trafficking thrives in India?, Livemint (Jun 12, 2020, 01:27 AM) https://www.livemint.com/Politics/pxj4YasmivrvAhanv600CJ/Why-organ-trafficking-thrives-in-india.html.

[24] Illegal Human Organ Trade in India: A Study of the International Socio-legal perspective, Lloyd Law College (Jun 13, 2020, 01:12 AM) https://www.lloydlawcollege.edu.in/research-publication/research-project/viewmore2.html.

[25] Supra n 3.

[26] RB Kishore, India needs a uniform law on organ donation. Here’s Why? HindustanTimes (Jun 14, 2020, 01:01 AM) https://m.hindustantimes.com/analysis/india-needs-a-uniform-law-on-organ-donation-here-s-why/story-BQTsc2Iqk9zhYfhH&AHn4J.html

[27] Supra n 1.

[28] Supra n 3.

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