Law Analysis
Appropriate enactment can prevent illegal trade of kidney
Alarmingly illegal trades of kidneys are taking place in our country. The reason behind this is increase rate of private hospitals, nursing homes or clinics in big cities and in the town area, who are involved in illegal organ trade, especially kidney transplantation. In Bangladesh the availability of medical transplants is lower than the requirement. The first kidney transplantation was taken place in Bangladesh in 1982. The vast need of kidney and less number of supply flourishes the illegal trade. There is some wrong intention works among the administration, police, private nursing home owners and a section of doctors. The person behind this trade sometimes appoints agents, who pursue the poor, uneducated people in villages or towns and manipulate them by showing the benefits of selling organs. These poor people are made to believe that as there are two kidneys in a human body and if they bestow away one, they still can survive well.
Transplantation of Human Organs Act-1999 (TOHO Act) deals with human organs transplantation in Bangladesh. Section 9 prohibits Offering, advertising or any other commercial dealings of human organ. Section 10(1) imposes punishment for violation of its provision rigorous imprisonment not less than 3 years and not more than 7 years or with fine of 3 lakh taka or with both. And if the offender is medical practitioner with the above said punishment his registration shall also be cancelled,
There is a reputation exists regarding some laws of Bangladesh being quixotic enough, this very Act is one of them. There are many lacunas in this Act frustrating the main purpose of enacting the same. Legal loopholes rather lead to illegal trade of human organs. These are- firstly, the present law regulates transplantation of only human organs. It needs to include tissues also. Secondly, the definition of 'near relative' is proposed to be expanded in order to include the grandparents and grandchildren as 'near relative'. There was no provision for grandparents and grandchildren.
Thirdly, the very preamble of the Act speaks about collection and conservation of human organs, but the provisions of the Act remains totally struck dumb about these important terms, namely how to collect, who will collect, where to reserve and is there any national conservation center. These questions remain permanently unanswered. Section 7 only speaks about formation of medical board but what procedure to be followed in doing the same and what is the exact function of those government appointed physician are not clearly mentioned here.
Fourthly, no provision of registration of medical centre, or university or collage for the purpose of transplantation work is there. This is very crucial points which need to be implemented without any delay. Besides registration methods for the donors and the recipients needs to put along with the provision of the registration of college or university or medical centre as well.
Fifthly, who will take cognisance of this offence is not mentioned in this Act. It only says that the criminal procedure code 1898 (V of 1898) shall be applicable regarding any offence under this Act.
Sixthly, section 11 of TOHO Act-1999 empowers the government to prescribe rules, but yet no rules have been framed, which is very much indispensable for actual enforcement of this Act. Seventhly, it needs to prescribe an appropriate authority that will grant permission of transplantation and examine the donor and recipient and take cognizance of offence. Lack of all these important issues makes the TOHO Act-1999 crippled.
From both legal and ethical aspect commercial dealings of human organ is appalling. The victim of this bio -violence is poor and illiterate section of the society, they remain always deprived. When they trapped by a lucrative offer, they agree to donate (in real) to sell their organ. Later, when they are not paid, they cannot seek the assistant of law enforcers, as the total transaction was illegal. The consideration was illegal, no contract was there. This is how this system prolonging the life of 'haves' over the life of 'have nots'. They are misled, misunderstood, disconcerted. Poverty doffed away the clothes of general prudence from them leading them to a deadly transaction. One of the main culprits leading this unlucky section of the society to such a dolorous life is TOHO Act-1999 itself. Before regulating transplantation of human organs, this law itself needs some legal-transplantation of important provisions first. Hopefully then we may stop this bio-violence.
The writer is a student of Law, University of Dhaka.
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