TRANSPLANTATION OF HUMAN ORGANS: A CRITICAL ANALYSIS

Abstract

Human trafficking is an antiquity and has possessed almost all civilizations and cultures in various forms and dimensions. It is a trade that exploits the vulnerability of human beings, especially women and children and leads to complete violation of their human rights. It makes living beings an object of monetary transactions through the use of force, duress or deception, for various purposes, chief among them for commercial sexual exploitation and for exploitative labour. India, one of the largest democracies in the world, has constitutionally prohibited traffic in human beings and has enshrined the right to be free from exploitation as a fundamental right of every person and contravention of same is also made punishable. Apart from human trafficking for purposes of sexual exploitation and forced labour, one of such exploitation extends to trafficking of human organs and transplantation of human organs with or without their consent of the person so concerned. Thus, it can be said emphatically that illegal trafficking of human organs is corollary of human trafficking only. 

At a stage where a particular organ of a patient becomes dysfunctional, the only cure is replacement of that dysfunctional organ with a healthy organ of some other person and in simple words it can be termed as transplantation of human organ. However, the procurement of organs for transplantation involves the removal of organs from the body of one person and replacement of same by organ of another person. Thus, this transplantation must follow legal requirements, including the definition of death and consent. Accordingly, in light of these legal requirements and formalities, it becomes essential to understand the distinction between “Organ transplantation and Organ trafficking”.

In the globalization era, organ trafficking has become quite synonymous with human sacrifice being witnessed by a widespread violation of human rights. Witnessing some inherent issues like the right to life of the patient (Donor) and the recipient (Donee) and the question of ownership upon such organs especially in cases where donors are still breathing received distinct opinions of experts and liberals.

Like in other parts of the world,  India also witness shortage of supply over exceeding demand, issue of adequate mechanism with difficulty in categorizing criminal liability in the process of illegal transplantation from donor to recipient lacking adequate data in spite of a enacted legislation like the Organ Transplantation Act, 1994 reflecting thereby the glimpse of an ever expanding illegality of the organ trade.

The core legislation related to organ donation and transplantation in India is Transplantation of Human Organs Act 1994 and is aimed at regulation of removal, storage and transplantation of human organs for therapeutic purposes and for prevention of commercial dealings in human organs.