The Transplantation of Human Organs Act is well-intentioned. But implementation on the ground defeats its very purpose as this case study from Kolkata illustrates
By Sujit Bhar in Kolkata
A sound law is one that is eminently enforceable. But sometimes even well intentioned and carefully thought out legal framework can turn awry in the absence of effective machinery for its implementation. It can also defeat the very purpose of a law if its enforcement is slow and tedious.
Recently, Kolkata was witness to this reality vis-à-vis a case of cadaver organ donation for which an effective law was supposedly implemented with the 2016 Cadaver Transplant Policy relaxing the norms for recovering organs from the bodies of accident victims or those declared brain dead at hospitals. Prior to this policy, there was the Transplantation of Human Organs Act, which was passed in 1994 and amended in 2011, following which West Bengal adopted it (after notification in 2014) to facilitate the process.
However, what transpired in the case detailed here illustrates that there can be many a slip between the cup and the lip.
On June 20, Sovana Sarkar (71) was admitted to a Kolkata hospital with an acute headache. She suffered a cardiac arrest the following day, slipping into a coma thereafter. The signs were clear that the patient was unlikely to survive. The prognosis of the doctors at the hospital after the cardiac arrest was that she could be brain-dead—in medical terms a complete and irreversible loss of brain function.
The near relatives of Sovana made up their mind to donate her organs as she had desired. So, as soon as the doctors said she could be brain-dead, her husband Rabindra Kumar (84) and her entrepreneur son Prasenjit gave their consent for organ donation and started contacting officials of the Health Department. It was to be the first ever cadaver organ donation in West Bengal. The Sarkars had thought things out in a positive and healthy manner.
What followed the benevolent decision was a harrowing four days of shuttling between the state secretariat, government departments and the hospital by Sovana’s grieving husband and son while her body was kept alive on ventilator support at the Peerless Hospital. The duo visited umpteen officials and filled up innumerable forms before a five-member panel authorized by the Health Department formally examined Sovana and declared her brain dead. Finally, four days after the formal declaration of brain-death, all the requisite clearances were with the Sarkars.
Two potential recipients for the organs were found, one at the government run SSKM Hospital and the other at the privately owned Belle Vue clinic. Both patients needed kidney transplants and their blood groups and other parameters matched with Sovana’s. So, a week after she was admitted to hospital, six days after her cardiac arrest and a full four days after she was formally declared brain-dead, she was shifted to Belle Vue for the transplant.
Her corneas, kidneys and liver were extracted, with expectation that at least four persons would benefit from the donation. Speaking to the media, Prasenjit Sarkar re-called the travails he had to go through till the organs were removed from his mother’s body. But he was happy that his mother succeeded in doing her good deed before departing from this world.
“We are happy that my mother’s organs can at last be donated. I felt it is a tough system and the relatives have to search around for officials to get the nod from the government. Instead, there should be an easier process for cadaver donation,” he said.
To be fair, it was not entirely the fault of the government. In fact, when Prasenjit had approached Chief Minister Mamata Banerjee’s office and had contacted Sashi Panja, the state health minister, he did receive guidance. “The CM’s office gave the necessary guidance and all the contacts, which led to the transplant,” Prasenjit told newspersons after the clearances had been given and the transplant surgery was in progress.
THINGS GO AWRY
Now the disturbing news. It was discovered, less than a month after the transplant, that one of the recipient’s new kidney wasn’t functioning well. Fungal growth necessitated its immediate removal. A similar fungal growth was also found in the kidney of the other recipient although, till the time of filing this report, it had reportedly not been removed as yet.
When the surgeons responsible for the transplants were contacted, they said that this could have happened because of the delay in transplanting the organs from the body of Sovana to the recipients. It was a fatal mistake which could undermine the good intentions of Sovana’s family.
But why did things go wrong? We need to take a look into the law for a start. When the Transplantation of Human Organs Act was passed in 1994 and amended 17 years later it was aimed at “regulating the removal, storage and transplantation of human organs for therapeutic purposes.” It was also supposed to act as a guardian for prevention of commercial dealings in human organs. In India, human organs cannot be sold or bought.
When the Transplantation of Human Organs Act was passed in 1994 and amended 17 years later, it was also supposed to act as a guardian for prevention of commercial dealings in human organs. Somewhere along the way, the regulatory framework showed loopholes.
Somewhere along the way, the regulatory framework showed loopholes, with commercial dealings in human organs being still being widely reported in the media. In 2009, an amendment to the Act was proposed by Goa, Himachal Pradesh and West Bengal to make the Act watertight and more effective. The amendment went through parliament in 2011 with the rules being formally notified in 2014.
It will be interesting, in the present context, to look into the main provisions of the amended Act.
- According to the Act, brain death is identified as a form of death. Form 10 defines the process and criteria for brain-death certification.
- The Act formally allows transplantation of human organs and tissues from living donors and cadavers (after actual death, in this case brain death).
- The Act formally advocates the setting up of regulatory and advisory bodies for monitoring transplantation. These are:
(i) Appropriate Authority (AA): AA inspects and grants registration to hospitals for conducting transplants, enforces standards for hospitals, conducts regular inspections to examine the quality of transplantations. And, having been vested with the power of a civil court, it can conduct investigations into complaints regarding breach of provisions of the Act.
(ii) Advisory Committee: This consists of experts in the area. They are to advise the appropriate authority.
(iii) Authorization Committee (AC): AC regulates living donor transplantation. It reviews each case to ensure that the living donor is not financially exploited. It ensures that the entire proceeding is video-recorded, following which it is to give its decision within 24 hours. This decision can be appealed, and that will go to the state or central government. This also means that appeals can mostly be made only after the stipulated 24 hours.
(iv) Medical board (Brain Death Committee): This is a panel of doctors who are responsible certifying a brain death. In the absence of a neurosurgeon, the certification can be done by any surgeon, physician, anaesthetist or intensivist, nominated by medical administrator in-charge of the hospital.
CHECKS AND BALANCES
The amended law seemed watertight. But in 2013, the Health Department of the West Bengal government came up with a set of guidelines to deal with the organ trade. It ordained that, in addition to the authorization committee, there will be a “verification committee” (one that finally gave certification for Prasenjit’s mother) in each block to verify details provided by the donor and recipient and then give a go-ahead.
There is a section within the medical community that feels that the strict law against financial allurements to donors may be posing a hindrance to recipients getting organs in time.
A senior health officer at the time (2013) was quoted in the media as saying: “The authorization committee was constituted… for examining and approving cases of human organ transplantation between recipients and living donors where the donor is not a near relative of the recipient. The act clearly states that no one barring near relatives can donate organs without the permission of the authorization committee. The committee used to give a green light based on verbal communications and documents provided by the donor and recipients. Henceforth, this policy will change.”
Fair enough, though the time consumed in this was not commented upon. The problem with the Sarkars was that Sovana being their wife and mother (near relative), the verification committee could have been done away with and time not wasted.
There is a section within the medical community that feels that the strict law against financial allurements to donors may be posing a hindrance to recipients getting organs in time. Arindam Kar of Medica Superspeciality Hospital (in East Kolkata) has been quoted in the media as saying: “Instead of imposing a blanket ban on buying organs, the government should allow organ transplants from brain-dead patients. It’s the only way to ensure that more transplants happen and lives are saved. The new rules don’t seem to be any different from the existing ones. If someone can afford to buy an organ and save his life, why should the government intervene and disallow that? What they need to do is ensure that organ transplants don’t turn into a business.” But some others point out that there is a very fine line that separates the legal and illegal.
The answer everyone is agreed is better quicker and more effective ways of harvesting organs from those declared brain dead.
Lead illustration: Anthony Lawrence