Transplant the law

The investigations into the activities of, and the prosecution of, the kidney doctor Amit Kumar promise to be interesting since there are so many loopholes in the law and unknown aspects of the case itself. India's law on transplants, the Transplantation of the Human Organs Act (TOHO), is of relatively recent vintage (1994), but is so loosely worded that it can allow living donations by 'relatives' and 'compassionate friends', a term which can be used to cover most categories of 'donors'. It must be presumed that the prosecution will focus on proving in the Amit Kumar case that the so-called donors could not possibly be related to the persons who were getting their kidneys as the latter were often foreigners, and the donors' social backgrounds would have prevented them from being 'compassionate friends' with those who were getting their organs.

But anything can happen in a country where, during the course of the Sanjeev Nanda case, a witness was brought in to testify that the BMW that ran over and killed six persons was a truck! Already, it is being said, the victims of the kidney racket are unwilling to come forward as witnesses because most of them had received some money for the kidneys taken from them""thus implicating them in other laws under which they would have to be prosecuted.

In the aftermath of Kumar's arrest, there has been a debate about bringing the trade into the open. Though horrific to think of, there is some logic to the demand for more openness. If it is indeed true that most of the "donors" were not gypped into donating their kidney but received money in return, the question of legalising the trade hinges on the point that the trade already exists.

If the trade is brought into the open, those selling their kidneys would probably get a better price, and the operations are more likely to take place in properly equipped hospitals. One way to bring the trade into the open would be to allow all those looking for transplants to register themselves with authorised hospitals, and to ask the same of potential donors.

To be sure, this would not eliminate those who would still prefer the services of a Kumar to skip the line or for some other perceived benefit (abortions still take place in all manner of shady establishments, though abortion is legal), but a large part of the problem would hopefully be taken care of.

The problem with this line of logic, however, is that is fails where donors are primarily those living below or very near the poverty line. It is not difficult to see a situation where, lured by the higher market price for kidneys, a lot more poor Indians opt to live with one kidney and, having used the money to pay off debts or getting daughters married, they are not left with enough money to take care of any medical emergencies later. Yet, between these two alternatives, there is enough space for the government to act.

Indeed, this is why a committee was set up under S Y Quraishi, then the health secretary (and now Election Commissioner). While recommending sticking with the ban on sales of kidneys, Quraishi had recommended the setting up of an organ bank based on kidneys from those killed in road accidents (more than 100,000 Indians die in road accidents each year) or from those declared brain-dead; the committee envisaged getting religious leaders involved in propagating donations, among other efforts to get kidneys. This was nearly two years ago, but the report lies buried in the health ministry's files. In such a situation, it is no surprise that a Kumar surfaces from time to time, to take care of what in the final analysis is a supply shortage.