Muhammad Javed Iqbal
2008-09-16 07:07:54 UTC
Case Studies : India Kidney Trade CASE NUMBER: 240
CASE MNEMONIC: KIDNEY
CASE NAME: India Kidney Trade
A. IDENTIFICATION
1. The Issue
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"(Max) . 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.
2. DESCRIPTION
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.
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
(Villivakkam) 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.
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.
As a result of the uncovering of this scandal, Parliament passed
a law to curb the kidney trade.
3. RELATED CASES
CIGAR case
EUMEAT case
CHERNOB case
BODY case
Keyword Clusters
(1): Trade Product = KIDNEY
(2): Bio-geography = Temperate [TEMP]
(3): Environmental Problem = MORAL
See also:
A report by Todd Leventhal, U.S. Information Agency, entitled
"The Child Organ Trafficking Rumor: A modern 'Urban Legend'".
December 1994.
A report conducted by the Human Rights Watch/Asia, Vol.6, No.9,
titled "Organ Procurement and Judicial Execution in China"
A report by The Laogai Research Foundation titled "Communist
Charity: The Use of Executed Prisoners' Organs in China".
January 1995.
A transcript of the Senate Foreign Relations Committee Hearing on
May 4, 1995 on "Human Organ Trade in China".
4. DRAFT AUTHOR: Trupti Patel
B. LEGAL CLUSTER
5. DISCOURSE AND STATUS: DISagree and ALLEGE
The passage of the Organ and Transplant Law signals the agreement
of Parliament members as to what steps the country needs to take
in order to curb the illegal kidney trade. However, within the
medical and legal community there is dissent and ambivalence
towards this law. There is a consensus that a law is needed to
stop the kidney trade but for various reasons ethical reasons
(taking kidneys from the dead) and practical ones (highlighted in
the legal section), there is dissatisfaction too.
There is a fear that pressure from the West may persuade the
Indian government to make paid donation illegal. Says Ashok
Kirpalani, a nephrologist at Bombay Hospital,"if we make it
illegal, then only the crooks and quacks will do
transplants" (Bailey, p.42). According to K.C. Reddy, an Indian
doctor, "it is far better to accept, regulate and contain the
malpractice in the organ trade rather than to legislate against
it - this will only drive the business underground to the
ultimate detriment of the donor and the patient "(Xinhua News
Agency, "Human..."). The new law is opposed by the Kidney
Patients Welfare Association, a group of 120 kidney recipients,
65% of whom have kidneys from unrelated donors (Moore and
Anderson, p. A26) and by those in the end stages of renal failure
for whom human kidneys means a chance to live but who are
restricted in obtaining them because the donors are not
relatives.
6. FORUM AND SCOPE: INDIA and UNILATeral
7. DECISION BREADTH: 1
Act 42 of the Transplantation of Human Organs Act will affect
kidney trade in the following countries: India, United States,
Latin America, Turkey, Saudi Arabia, Syria, Greece, Yemen,
Germany, Venezuela, Italy, Qatar and the Philippines and Oman.
8. LEGAL STANDING: LAW
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.
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.
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 (Kandela,
p.1534). 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.
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.
C. GEOGRAPHIC CLUSTER
9. GEOGRAPHIC LOCATIONS
a. DOMAIN: ASIA
b. SITE: SASIA
c. IMPACT: INDIA
10. SUB-NATIONAL FACTORS: NO
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.
11. TYPE OF HABITAT: TROPical
D. TRADE CLUSTER
12. TYPE OF MEASURE: Export Standard [EXSTD]
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. The aim of Act 42, optimistically
speaking, was to restrict and inhibit the commercialization of
the kidney trade. However, there is much discord about the
viability and legality of the Act. According to a Bombay
politician, Pramod Navalkar, "kidneys should come under export
regulations" (Max). The crucial question is whether a human
organ could be considered as "goods".
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.
13. DIRECT OR INDIRECT: DIRect
14. RELATION OF MEASURE TO IMPACT
A. DIRECTLY RELATED: Yes Kidney Patients
B. INDIRECTLY RELATED: No
C. NOT RELATED: No
D. PROCESS RELATED: Yes Moral
15. TRADE PRODUCTION IDENTIFICATION: KIDNEY
16. ECONOMIC DATA
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 (Chandra, p.53). 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(Max) . 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 (Friese
and Rai, p.89). 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.
17. IMPACT OF TRADE RESTRICTION: HIGH
18. INDUSTRY SECTOR: HEALTH
19. EXPORTER AND IMPORTER: INDIA and MSNY
E. ENVIRONMENT CLUSTER
20. ENVIRONMENTAL PROBLEM TYPE: HEALTH
21. SPECIES INFORMATION
SPECIES: Homosapiens
GENERA: NA
DIVERSITY: NA
22. IMPACT AND EFFECT: HIGH and PRODuct
23. URGENCY AND LIFETIME: LOW and 70 years
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 (Kandela, p.1534).
24. SUBSTITUTES: LIKE products
Cadavers, Artificial kidneys, Dialysis machines
E. OTHER FACTORS
25. CULTURE: YES
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 (Indian Express, "Experts..." , p.5).
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.
26. TRANS-BOUNDARY ISSUES: No
27. HUMAN RIGHTS: YES
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 (Human Rights
Watch/Asia, p.2).
28. RELEVANT LITERATURE:
Agence France-Presse. "Indian Law Soon Against Human Organ
Trafficking" . India News Network. February 20, 1995
Baek, Glenn. Ted Case: Body, Human Body Parts Trade.
Bailey, Ronald. Reason. "Spare Parts". August/September 1990.
pp.41-42. -
Indian Express. "Another Kidney Racket Busted". New Delhi,
Wednesday, February 22, 1995. p.11.
Chakravarthy, M.N. Indian Express. "Doctors Indicted In Kidney
Transplant Deaths". New Delhi, Saturday, April 22, 1995. p.9.
Chandra, Prakash. World Press Revies. "Kidneys For Sale".
February 1991. v.38n2. p.53.
Friese, Kai and Rai, Saritha. India Today. "Kidney Transplants:
Business As Usual". March 15, 1995. p.89.
Ghoshal, Sumit. Indian Express. "Hospitals, Doctors In Organ
Transplant Trade". Bombay, Saturday, January 28, 1995. p.2.
Ghoshal, Sumit. Indian Express. "Kidney Traders Have Breached
Export Laws, Says Navalkar". Bombay, Thursday, March 2, 1995.
p.3.
Ghoshal, Sumit and Kumar, Rajesh. Indian Express. "Major City
Hospitals Also Involved In Kidney Racket". Bombay, Friday,
February 25, 1995. p.1.
Ghoshal, Sumit and Najmi, Quaied. Indian Express. "Kidney
Racket Prompts Move To Screen Aliens". Bombay, Sunday, February
26, 1995. p.1.
Indian Express. "Cops Compelled To Play Host To Kidney Losers".
Bombay, Friday, February 17, 1995. p.9.
Indian Express. "Customs Officials Unearth Kidney Drain Racket".
New Delhi, Money, January 16, 1995. p.6.
Indian Express. "Doctors Blame New Act For Organ Shortage". New
Delhi, Sunday, February 26, 1995. p.3.
Indian Express. "Doctors Dupe Blood Donors, Sell 1,000 Kidneys".
New Delhi, Monday January 30, 1995. p.5.
Indian Express. "Doctors Steal 1000 Kidneys Of Blood Donors For
W. Asians". New Delhi, Monday, January 30, 1995. p.1.
Indian Express. "Experts Welcome Transplant Bill". Saturday,
February 11, 1995 p.5.
Indian Express. "Kidney Transplant Racket in City Busted".
Bombay,
Indian Express. "Major Kidney Racket In Banglore Busted".
Bombay, Monday, January 30, 1995. p.9.
Indian Express. "Medical Councils Knew Of Kidney Racket: M N
Singh". Bombay, Saturday, March 4, 1995. p.2.
Indian Express. "New Ambiguous Act Brings Kidney Transplants To
A Halt". Bombay, Wednesday, February 8, 1995. p.9.
Indian Express. "Organ Transplant Law To Be Notified This Week".
Bombay, Thursday, February 2, 1995. p.17.
Indian Express. "Stir Threat Over AP Govt Apathy Towards
Patients Urgently Needing Kidney Transplants" . Bombay, Saturday,
March 4, 1995. p. 17.
Jain, Neelam, United Press International "India Cracks Another
Kidney Racket". Feb.22,1995.
Jyothi, P T. Indian Express. "Where Kidney Donation Is A
Cottage Industry". Bombay, Wednesday, January 25, 1995. p.1.
Kandela, Peter. Lancet. "India: Kidney Bazaar". June 22,
1991. vol. 337, issue#756.
Los Angeles Times. "Kidney Sales Brokerage Is Flourishing In
India". Sunday, July 16, 1989.
Machaiah, M Gautham. Indian Express. "Doctors Besieged With
Threats For Compensation" . Bombay, Thursday, February 9, 1995.
p.9.
Machaiah, M Gautham. Indian Express. "Doctors Contest Police
Claims On Kidney Scandal". New Delhi, Thursday, February 2,
1995. p.5.
Machaiah, M Gautham. Indian Express. "Senior Politicians, Cops
Collude To Bury Kidney Scam". Bombay, Saturday, February 4,
1995. p.9.
Marpakwar, Prafulla. Indian Express. "Key Officials Avoid
Medical Council Inquiry On Kidney Racket". Bombay, Tuesday,
April 18, 1995. p.1.
Max, Arthur. Associated Press Writer. "Black Market Kidneys".
Moore, Molly and Anderson, John Ward. Washington Post. "Kidney
Racket Riles Indians: Publicity About Sale Of Body Parts Leads
To New Restrictions" . Sunday, April 30, 1995.
New Scientist. "Kidney Thieves hit Banglore". February 11,
1995. No.1964. p.9
Sankla, Rajaram. Indian Express. "Kidney Scandal Aggravates
Patients' Agony". New Delhi, Friday, February 17, 1995. p.5.
Sankla, Rajaram. Indian Express. "Patients Awaiting Kidney
Transplants Left In The Lurch". Bombay, Saturday, February 18,
1995. p.10.
Sarin, Ashwini. Indian Express. "Kidney For Sale, For A Few
Dollars More". Bombay, Saturday, March 4, 1995. p.2.
The Reuter Library Report. "Singaporeans Go To India For Kidney
Transplants" . May 30, 1988.
The Xinhua General Overseas News Service. "Human Organs Sold By
Poor For Transplants, Conference Told". August 22, 1989.
Times of London, "Kidneys stolen from poor; some Indian clinics
sell organs to Persian Gulf". 2/16/95.
http://www.american .edu/TED/ KIDNEY.HTM
__._,_.___ M. Javed
Iqbal
CASE MNEMONIC: KIDNEY
CASE NAME: India Kidney Trade
A. IDENTIFICATION
1. The Issue
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"(Max) . 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.
2. DESCRIPTION
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.
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
(Villivakkam) 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.
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.
As a result of the uncovering of this scandal, Parliament passed
a law to curb the kidney trade.
3. RELATED CASES
CIGAR case
EUMEAT case
CHERNOB case
BODY case
Keyword Clusters
(1): Trade Product = KIDNEY
(2): Bio-geography = Temperate [TEMP]
(3): Environmental Problem = MORAL
See also:
A report by Todd Leventhal, U.S. Information Agency, entitled
"The Child Organ Trafficking Rumor: A modern 'Urban Legend'".
December 1994.
A report conducted by the Human Rights Watch/Asia, Vol.6, No.9,
titled "Organ Procurement and Judicial Execution in China"
A report by The Laogai Research Foundation titled "Communist
Charity: The Use of Executed Prisoners' Organs in China".
January 1995.
A transcript of the Senate Foreign Relations Committee Hearing on
May 4, 1995 on "Human Organ Trade in China".
4. DRAFT AUTHOR: Trupti Patel
B. LEGAL CLUSTER
5. DISCOURSE AND STATUS: DISagree and ALLEGE
The passage of the Organ and Transplant Law signals the agreement
of Parliament members as to what steps the country needs to take
in order to curb the illegal kidney trade. However, within the
medical and legal community there is dissent and ambivalence
towards this law. There is a consensus that a law is needed to
stop the kidney trade but for various reasons ethical reasons
(taking kidneys from the dead) and practical ones (highlighted in
the legal section), there is dissatisfaction too.
There is a fear that pressure from the West may persuade the
Indian government to make paid donation illegal. Says Ashok
Kirpalani, a nephrologist at Bombay Hospital,"if we make it
illegal, then only the crooks and quacks will do
transplants" (Bailey, p.42). According to K.C. Reddy, an Indian
doctor, "it is far better to accept, regulate and contain the
malpractice in the organ trade rather than to legislate against
it - this will only drive the business underground to the
ultimate detriment of the donor and the patient "(Xinhua News
Agency, "Human..."). The new law is opposed by the Kidney
Patients Welfare Association, a group of 120 kidney recipients,
65% of whom have kidneys from unrelated donors (Moore and
Anderson, p. A26) and by those in the end stages of renal failure
for whom human kidneys means a chance to live but who are
restricted in obtaining them because the donors are not
relatives.
6. FORUM AND SCOPE: INDIA and UNILATeral
7. DECISION BREADTH: 1
Act 42 of the Transplantation of Human Organs Act will affect
kidney trade in the following countries: India, United States,
Latin America, Turkey, Saudi Arabia, Syria, Greece, Yemen,
Germany, Venezuela, Italy, Qatar and the Philippines and Oman.
8. LEGAL STANDING: LAW
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.
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.
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 (Kandela,
p.1534). 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.
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.
C. GEOGRAPHIC CLUSTER
9. GEOGRAPHIC LOCATIONS
a. DOMAIN: ASIA
b. SITE: SASIA
c. IMPACT: INDIA
10. SUB-NATIONAL FACTORS: NO
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.
11. TYPE OF HABITAT: TROPical
D. TRADE CLUSTER
12. TYPE OF MEASURE: Export Standard [EXSTD]
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. The aim of Act 42, optimistically
speaking, was to restrict and inhibit the commercialization of
the kidney trade. However, there is much discord about the
viability and legality of the Act. According to a Bombay
politician, Pramod Navalkar, "kidneys should come under export
regulations" (Max). The crucial question is whether a human
organ could be considered as "goods".
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.
13. DIRECT OR INDIRECT: DIRect
14. RELATION OF MEASURE TO IMPACT
A. DIRECTLY RELATED: Yes Kidney Patients
B. INDIRECTLY RELATED: No
C. NOT RELATED: No
D. PROCESS RELATED: Yes Moral
15. TRADE PRODUCTION IDENTIFICATION: KIDNEY
16. ECONOMIC DATA
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 (Chandra, p.53). 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(Max) . 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 (Friese
and Rai, p.89). 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.
17. IMPACT OF TRADE RESTRICTION: HIGH
18. INDUSTRY SECTOR: HEALTH
19. EXPORTER AND IMPORTER: INDIA and MSNY
E. ENVIRONMENT CLUSTER
20. ENVIRONMENTAL PROBLEM TYPE: HEALTH
21. SPECIES INFORMATION
SPECIES: Homosapiens
GENERA: NA
DIVERSITY: NA
22. IMPACT AND EFFECT: HIGH and PRODuct
23. URGENCY AND LIFETIME: LOW and 70 years
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 (Kandela, p.1534).
24. SUBSTITUTES: LIKE products
Cadavers, Artificial kidneys, Dialysis machines
E. OTHER FACTORS
25. CULTURE: YES
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 (Indian Express, "Experts..." , p.5).
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.
26. TRANS-BOUNDARY ISSUES: No
27. HUMAN RIGHTS: YES
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 (Human Rights
Watch/Asia, p.2).
28. RELEVANT LITERATURE:
Agence France-Presse. "Indian Law Soon Against Human Organ
Trafficking" . India News Network. February 20, 1995
Baek, Glenn. Ted Case: Body, Human Body Parts Trade.
Bailey, Ronald. Reason. "Spare Parts". August/September 1990.
pp.41-42. -
Indian Express. "Another Kidney Racket Busted". New Delhi,
Wednesday, February 22, 1995. p.11.
Chakravarthy, M.N. Indian Express. "Doctors Indicted In Kidney
Transplant Deaths". New Delhi, Saturday, April 22, 1995. p.9.
Chandra, Prakash. World Press Revies. "Kidneys For Sale".
February 1991. v.38n2. p.53.
Friese, Kai and Rai, Saritha. India Today. "Kidney Transplants:
Business As Usual". March 15, 1995. p.89.
Ghoshal, Sumit. Indian Express. "Hospitals, Doctors In Organ
Transplant Trade". Bombay, Saturday, January 28, 1995. p.2.
Ghoshal, Sumit. Indian Express. "Kidney Traders Have Breached
Export Laws, Says Navalkar". Bombay, Thursday, March 2, 1995.
p.3.
Ghoshal, Sumit and Kumar, Rajesh. Indian Express. "Major City
Hospitals Also Involved In Kidney Racket". Bombay, Friday,
February 25, 1995. p.1.
Ghoshal, Sumit and Najmi, Quaied. Indian Express. "Kidney
Racket Prompts Move To Screen Aliens". Bombay, Sunday, February
26, 1995. p.1.
Indian Express. "Cops Compelled To Play Host To Kidney Losers".
Bombay, Friday, February 17, 1995. p.9.
Indian Express. "Customs Officials Unearth Kidney Drain Racket".
New Delhi, Money, January 16, 1995. p.6.
Indian Express. "Doctors Blame New Act For Organ Shortage". New
Delhi, Sunday, February 26, 1995. p.3.
Indian Express. "Doctors Dupe Blood Donors, Sell 1,000 Kidneys".
New Delhi, Monday January 30, 1995. p.5.
Indian Express. "Doctors Steal 1000 Kidneys Of Blood Donors For
W. Asians". New Delhi, Monday, January 30, 1995. p.1.
Indian Express. "Experts Welcome Transplant Bill". Saturday,
February 11, 1995 p.5.
Indian Express. "Kidney Transplant Racket in City Busted".
Bombay,
Indian Express. "Major Kidney Racket In Banglore Busted".
Bombay, Monday, January 30, 1995. p.9.
Indian Express. "Medical Councils Knew Of Kidney Racket: M N
Singh". Bombay, Saturday, March 4, 1995. p.2.
Indian Express. "New Ambiguous Act Brings Kidney Transplants To
A Halt". Bombay, Wednesday, February 8, 1995. p.9.
Indian Express. "Organ Transplant Law To Be Notified This Week".
Bombay, Thursday, February 2, 1995. p.17.
Indian Express. "Stir Threat Over AP Govt Apathy Towards
Patients Urgently Needing Kidney Transplants" . Bombay, Saturday,
March 4, 1995. p. 17.
Jain, Neelam, United Press International "India Cracks Another
Kidney Racket". Feb.22,1995.
Jyothi, P T. Indian Express. "Where Kidney Donation Is A
Cottage Industry". Bombay, Wednesday, January 25, 1995. p.1.
Kandela, Peter. Lancet. "India: Kidney Bazaar". June 22,
1991. vol. 337, issue#756.
Los Angeles Times. "Kidney Sales Brokerage Is Flourishing In
India". Sunday, July 16, 1989.
Machaiah, M Gautham. Indian Express. "Doctors Besieged With
Threats For Compensation" . Bombay, Thursday, February 9, 1995.
p.9.
Machaiah, M Gautham. Indian Express. "Doctors Contest Police
Claims On Kidney Scandal". New Delhi, Thursday, February 2,
1995. p.5.
Machaiah, M Gautham. Indian Express. "Senior Politicians, Cops
Collude To Bury Kidney Scam". Bombay, Saturday, February 4,
1995. p.9.
Marpakwar, Prafulla. Indian Express. "Key Officials Avoid
Medical Council Inquiry On Kidney Racket". Bombay, Tuesday,
April 18, 1995. p.1.
Max, Arthur. Associated Press Writer. "Black Market Kidneys".
Moore, Molly and Anderson, John Ward. Washington Post. "Kidney
Racket Riles Indians: Publicity About Sale Of Body Parts Leads
To New Restrictions" . Sunday, April 30, 1995.
New Scientist. "Kidney Thieves hit Banglore". February 11,
1995. No.1964. p.9
Sankla, Rajaram. Indian Express. "Kidney Scandal Aggravates
Patients' Agony". New Delhi, Friday, February 17, 1995. p.5.
Sankla, Rajaram. Indian Express. "Patients Awaiting Kidney
Transplants Left In The Lurch". Bombay, Saturday, February 18,
1995. p.10.
Sarin, Ashwini. Indian Express. "Kidney For Sale, For A Few
Dollars More". Bombay, Saturday, March 4, 1995. p.2.
The Reuter Library Report. "Singaporeans Go To India For Kidney
Transplants" . May 30, 1988.
The Xinhua General Overseas News Service. "Human Organs Sold By
Poor For Transplants, Conference Told". August 22, 1989.
Times of London, "Kidneys stolen from poor; some Indian clinics
sell organs to Persian Gulf". 2/16/95.
http://www.american .edu/TED/ KIDNEY.HTM
__._,_.___ M. Javed
Iqbal