Organ transplant has become quite an industry with murky dealings being so widespread. The industry has always had the support of those in power.
By Aruna Joshi,(Joshi is a LL.B. 4th Year student at Kathmandu School of Law. She can be reached at: hereisaruna@gmail.com)
Aruna Joshi Organ transplant is a discovery of medical science which refers to the process of donation and acceptance of human organs by two different individuals. The technology developed by the medical science has made a successful survival of the human being with change of some of the defective body parts. The process and success of the events have proved organ transplant as a boon to human lives. It has helped in saving lives of those who would have died otherwise. It is obvious that the science and technologies have advanced the human life. But we can not disregard the fact that they have created harm and destruction in a number of ways. So to use the technology for good purpose and to avoid the use for negative, destructive, immoral and illegal purposes certain legal framework is necessary.
When we talk about organ transplant it is primarily viewed as a life-saving means. But with its positive objective, organ transplant has even become a means of smuggling of organs, human trafficking, killing of human beings, selling and purchase of human organs and unethical medical practices etc. Such malicious practices have created no value of one human being to the other.
Almost all countries have enacted specific laws to regulate the procedures of organ transplant and to control and prohibit transactions of the human organs for purposes other than true medical curative purpose under authorised system. Nepal too has laws to deal in the matter of organ transplant. Organ Transplant in Nepal is guided by Human Trafficking (Control) Act 2064 B.S. and Human organ Transplant Act 2055 B.S. Human Organ Transplant Act has prohibited conducting the transplant related activities without prior licensing from the concerned authority. Similarly Human Trafficking (Control) Act 2064 B.S has considered illegal organ transplant as an act punishable as trafficking of human being.
The laws have illustrated the activities related to organ transplant to differentiate between legal and illegal sort of acts. Transplant activities are prohibited for the purpose of selling and buying. It is permitted only for medication under requirement by licensed authority. Furthermore, the Act provides different set of conditions to obtain organ from living and the dead donors. The law has provision for punishment to persons dealing in human organs for illegal transactions. Even the advertisement and publicity for donating and receiving organs is illegal.
Though the law exists because of ineffective implementation, the illegal transactions are not controlled. Until few years back Nepalese used to go to different countries for organ transplant. But in present scenario, few hospitals in Nepal have successfully transplanted kidney which is a major achievement in the field of organ transplant. But it has put challenge for the legal system to make rules and regulations relating to the organ transplant more effective. Also Nepal is considered as vulnerable trafficking zone. Many women and children are trafficked every year to different countries. The one purpose of trafficking has been identified as illegal transplant of human organs. Controlling of this act is another challenge. Further various media have reported that many poor people for the sake of small sum of money sell their organs which is illegal but the law has failed to address the issues.
Organ transplant has become quite an industry with murky dealings being so widespread. The industry has always had the support of those in power. The most common way in which organs are traded across national borders is via potential recipients traveling abroad to undergo organ transplant, commonly referred to as “transplant tourism”. Various news reports have highlighted the malpractices. Notably, countries like Nepal and India have flourishing illegal trade in human organs. And the legislation designed to prevent it is failing. The incidents, like recent case of kidney racket involving an Indian doctor (known as ‘kidney kingpin’), raised many questions, including the efficacy of existing laws in Nepal. Even the issue reflects Nepal’s poor situation in terms of extradition, always losing bargain with big countries.
The organ transplant thus requires a strong mechanism to transplant the organs in an authorised way and to control and prohibit all other activities related to it. We must restore organ transplant to where it really belongs – not as an example of all that is unethical and commercial but as a modern medical advance permitting one human being to make the gift of life to another. The organ transplant regulated under legal framework with control of all the illegal transactions is a challenge to the policy makers and executors.
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