The ordinance must be flawless

By Zubeida Mustafa
Source: Dawn

LAST week, Chief Justice Iftikhar Mohammad Chaudhry directed the government to promulgate without delay the Transplantation of Human Organs and Tissues Ordinance 2007. In the absence of a law to regulate organ transplantation, unscrupulous elements have reduced Pakistan to what is dubbed as a ‘gurda kundi’ where humans are auctioned for their organs.

What is more distressing is that an ordinance to check this criminal practice has been before the government for quite some time now. Notwithstanding the Supreme Court’s concern expressed earlier vested interests have succeeded in blocking progress.

Hopefully this order issued by a bench of the Supreme Court will galvanise the cabinet into action and it will hasten to issue the ordinance and not succumb to pressure from those who have no qualms about trampling on human dignity.

A word of warning here would not be out of order, though. If the aim of the new law is to clamp down on the commercialisation of organ transplantation, it is important to ensure that the ordinance to be approved by the cabinet this week does not contain the flaws that have been pointed out by transplant specialists as it will then defeat the law’s purpose.

As Dr Adeebul Hasan Rizvi, the director of SIUT, said at a press conference on Friday, “No law is better than a bad law.” We know from experience that a bad law sticks like an albatross around the neck. Once adopted, it becomes next to impossible to change it. Hence the importance of striving for an ideal law in the first place.

The thrust of any law dealing with organ transplantation should desirably be three-fold. First, it should legalise deceased organ donation by recognising brain death and devise a system for people to will their organs for transplantation after their death. Second, it should ensure that all organ donations by living people should be voluntary and for close blood/spousal relatives.

Third, the law should ensure that all ethical norms are fully observed, the fundamental principle being the one enshrined in WHO’s protocol that very clearly stipulates that procuring human organs in lieu of monetary payment is unethical.

This would require several rules and institutional structures to ensure that no exploitative and unethical practices are legalised that would allow people to sell their organs. The UN has equated such organ sales with human trafficking.

Given the pauperisation of large segments of the population and the acute shortage of organs from the deceased it is not surprising that conditions are so conducive for a thriving organ trade. People mired in poverty and in desperate need of money seek to sell their kidney for a paltry sum — as little as Rs40, 000 — while vendors take away the lion’s share. Such are the pressures of poverty.

More shameful are the ways of avarice. There are surgeons who have chosen to discard the noble traditions of their calling to make a quick buck by criminal means. The business has been made more lucrative by patients from abroad who are denied this facility in their home country.

The lapses on the part of our policymakers have led to this shocking situation. Pakistan is the only country in the region without a law to regulate organ donation and transplantation although this programme has been in place since the 1980s. The SIUT, the largest transplant centre in the country, has transplanted over 1,800 organs in just over two decades. Throughout this period, Dr Rizvi has been demanding the necessary legislation as he was aware of the potential for misuse and exploitation of the poor if no law was adopted. A bill was first placed before the Senate in 1992.

As a result, today there are villages in Punjab where the entire adult population has sold its kidney for a measly sum of Rs40, 000-Rs80, 000. The beneficiaries of the transactions are the vendors who conduct auctions to purchase the best organs and the surgeons who fleece their patients to carry out this illegal operation. A large number of the patients are foreigners from countries where the sale of organs is banned.

The Supreme Court took up the case suo motu when the plight of some donors who had been held in captivity by the middlemen came to its notice. It is, however, important that the judges ensure that the ordinance to be promulgated leaves no opening for commercialism.

The most objectionable clause in the draft ordinance that is said to be under consideration is section 3, subsection 2 that states: “In case of non-availability of a donor as explained under subsection 1 and there is a threat to life of an end stage renal disease failure patient, liver, heart or lungs patients, the evaluation committee may allow donation by a non-blood relative, after satisfying itself that such donation is voluntary. The donor under this subsection shall be compensated as may be prescribed.”

This would leave a lot to the discretion of the evaluation committee. In the absence of specifications of this body and considering the rampant commercialisation and corruption, it is inevitable that this clause would be used to allow the organ trade to flourish on the plea that “there is a threat to life.”

In India, where the conditions are similar to ours, the organ transplant law was enacted in 1994. It specifically forbade commercial dealings in human organs but allowed an unrelated donor transplantation for ‘reason of affection or attachment’ between the two parties but only after the authorisation committee had sanctioned it.

Ten years later, it has been found that in places where the authorisation committee is weak as in Tamil Nadu the organ racket continues unabated. In fact, by virtue of a thoroughly corrupt authorisation committee, the trade has received legal sanction as well. There have now been demands to amend the law and ban all unrelated organ transplantations.

While jurists and legal experts in our case wrangle over the text of the ordinance, it is important to bear in mind the human dimension of the matter. Can a surgeon who is more interested in the money he earns than the welfare of his patients ensure that his patients will receive efficient and professional care of the best kind? Can a patient who receives an organ in a hurry with no adequate tissue typing and is packed off home within a week of his surgery without any follow-up care hope to remain in good health?

Since no records are kept the survival rate cannot be verified but the impression is that mortality is high. This must be checked and a good law is the first step in that direction.

The next step is for transplant surgeons to demonstrate their integrity and commitment to their patients. Karachi, the biggest city and transplant centre in Pakistan, can be proud of the fact that it has upheld the dignity of man because Dr Adeeb Rizvi has stood his ground. By providing free treatment to its patients — and that includes costly transplant surgery and dialysis — SIUT has preempted the commercialisation of organ transplantation in Sindh.