– By Tanya Aggarwal, 3rd Year, Amity Law School, Noida)
Since evolution, human beings have applied their intellect towards scientific development, advancement of medical science and better operative procedures to aid longevity to human life on Earth. Medicine has provided support to cure illness and surgical procedures to fix the human body. This operative procedure was extended to the replacement of body parts via organ transplant procedures when needed. The sourcing of these body parts has taken a new shape which is acting against humanity.
Origin of demand: The patients looking for a medical solution to their ailment require an organ to be replaced with a matching donor and thus they fall prey, to a trafficker who could be posing as an altruistic representative of a reputable organ matching organization. The organ trade has a lifetime of health consequences to both the vulnerable poorer populations, aka “donors,” and first world beneficiaries, aka “recipients,” who trigger exploitation due to selfishness. Trafficking for sex or labor is the more known form of human trafficking which has been popular for ages among public policy and campaign leaders. An emerging area adding a third dimension to it is where the parents use the womb of a third woman for surrogacy as them being the real parents, would not like to take the pain of giving birth to their child. The medical pinnacle of using the body part of dead doners to provide extended life on earth has its consequences which were never seen before but the monetary greed gives birth to ‘many unethical transactions’. Many cases in India have been reported and witnessed where organs have been required by children or older people and a demand and supply problem had existed.
Financials: The amount of money involved in this process explains the demand and supply of Organs as a good business model, however, not legal. Thus, the poor in need of money or under coercion scums to global illegal organ trade. It is often a lesser discussed form of human trafficking among anti-human trafficking stakeholders due to its complex and often secretive nature. Financial institutions are blindfolded to the lack of details in each transaction, which are used to be part of illicit trade without awareness of the checks to be made on the financial trail of these transactions. As per the definition of the World Health Organization (WHO) the illegal organ trade occurs when organs are removed from the body for consideration. While there is an ordinance against organ sales, but this practice persists, with surveys estimating anywhere from 5% to 42% of transplanted organs that are procured via illicit route. Global data research indicates that illegal organ trade generates profits between $600 million and $1.2 billion per year distributed across countries.
Sourcing: Murder of infants for stem cells, kidnappings of children, and teenagers by well-protected criminal networks who deliver these human raw materials to locations with medical facilities equipped with a team of doctors and technicians who curates their organs as harvest for the illegal organ trade are some of the popular forms of the sourcing of human organ trafficking. Organs once obtained can be transplanted to receivers in the most reputable hospitals in major cities throughout the World but provisional operating rooms in houses have often been the secret locations for such transplants. Traffickers arrange the employment of the donor often from a place of vulnerability, and victims are not necessarily properly screened for their qualifications to be healthy donors. There can be a multi-level equation of exploitation of the human body before extraction of organs as per demand created by the recipients.
Even in 2020, Kerala had a reported case where members from 31 families were lured for donating their organs in exchange of money.
Lack of legal action: Under coercion, lack of knowledge of rights, legislation loopholes, and poverty leading to the illegal trade of organs, claims of organ trafficking are difficult to substantiate due to lack of evidence and reliable data. Cases of illegal organ trade have been tried and prosecuted which include criminal gangs, medical facilities, third-party organ brokers (handlers), doctors, technicians, donors, and recipients. Internationally organized crime groups operating in organ trafficking known as ‘handlers’ hold a critical place due to high demand while taking advantage of weak law enforcement. Organ traffickers make the most profit and their medical counterparts are cannibalizing bodies mechanically. Some Indian surgeons have been reported for facilitating the trade of human kidneys just like the case of Mumbai where Dr. Suresh Trivedi was arrested.
In 2016, a case of Sundar Singh Jadhav got viral because of he had disclosed about a famous kidney racket at Mumbai’s Hiranandani hospital. He had been the key witness to the trafficking happening there. His death in January 2019 made it to the news because no suicide note was found at his place but according to the police financial stress and domestic problems had been the reason behind his death.
Background: With lifestyle changes, kidney diseases are common and are among the popular organ transplants. There is an increase in cardiometabolic disease and aging populations worldwide; the burden of kidney disease has also increased. The first long-term success on human beings, one of the seminal events of medical history, was performed at a hospital in Boston, MA, in 1954 by Joseph Murray who was the first transplant surgeon ever, when a kidney from a healthy twin brother was transplanted into his identical terminally ill brother. In the last few decades, there has been a steady growth in social and legal acceptance of what defines appropriate organ donors, it now includes brain-dead or non–beating-heart donors, including donations from patients after cardiac death, as well as self-motivated living donors who would not historically have been considered strong candidates (including the elderly and diabetic individuals) and directed humane donors. In the United Kingdom, the demand for kidney transplants has consistently and increasingly exceeded the number of available donor organs for the last 2 decades. Recorded in 2008 almost 8,000 patients were on waitlist and since the demand has a steady increase of 8% per annum. The situation is equally frustrating for patients with kidney failure in other countries, leading to the death of thousands of patients on the list awaiting a kidney transplant. Medical tourism started with long waiting queues to get urgent surgeries however it also aided towards “transplant tourism,” thereby, unfortunately, encouraging organ trafficking in vulnerable developing countries with large numbers of vulnerable population strata who scum to the act under poverty or other conditions. Globally, efforts and rules should be defined to combat organ trafficking and address the issue of an ethical supply of organs. The check on the agencies which pose to be selfless and helping as the bridge between donor and recipient while keeping the identities secret should be scrutinized and the supply chain should be curtailed. Countries like Pakistan, India, and Turkey have a good medical infrastructure and huge population under the poverty line and have acquired the global reputation of “kidney bazaars”.
Human Rights: The Right to Human Body, also termed as Bodily integrity, is the inviolability of the physical body and emphasizes the importance of personal autonomy, self-ownership, and self-determination of human beings over their bodies. By a bodily right, we mean a right that regulates a person’s privileges concerning her own body but the right to use the parts of the body that constitutes one for the benefit of another can be unethical infringement, intrusive, and possibly criminal. In case of loss of life of the primary holder the body organs can come to use but should not be traded while it was of use in the primary body. Blood donation is a good example where the donated blood supplements post donation in the primary body however in organ transplants it does not and the primary body has shortened life expectancy with the in-life donation.
Science has helped humans in living a better and longer life however, the pace at which the demand is created for organs and the supply is being articulated to meet from poorer countries is alarming. The exploitation of the poor across the globe should be brought to check to bring human equality into the spotlight. It should provide total transparency of the consequences of the transaction for the Donor and the recipient. The third-party organ brokers (handlers) should be identified and tried for their merciless act in absence of an adequate legal framework. International laws should control “transplant tourism” as it is a criminal act towards the population of a country by a foreigner, which goes without any check today.
Indian Society for Legal Research 