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Commercial donors in the disguise of a near relative or the spouse: Rough draft for inputs


Commercial donors in the disguise of a near relative or the spouse

Dr K K Aggarwal

Background: Many cases of kidney racket are being reported in the media. The new Transplantation of Human Organs and Tissues Rules, 2014 has been notified and is applicable to the medical practice.  

In most instances the case is that people bring commercial donors in the disguise of a near relative or the spouse. There are loop holes in the organ transplant rules which may make it difficult for the treating doctors to suspect them. In any way the treating doctors cannot be involved in any such scam as they have nothing to do with the committees constituted under the new rules and the law.

Procedure in case of near relatives

Who is a near relative?

When transplant of organs is between near relatives related genetically, namely, grandmother, grandfather, mother, father, brother, sister, son, daughter, grandson and granddaughter, above the age of eighteen years

Who can give permission?

The competent authority as defined at rule 2(c) or Authorisation Committee (in case donor or recipient is a foreigner)

What is the competent authority?

(c) “Competent authority” means the Head of the institution or hospital carrying out transplantation or committee constituted by the head of the institution or hospital for the purpose;

What does it mean?

It can be a single window clearance by the head of the institution.

What is the role of the competent authority?

To evaluate conclusively

1.       Documentary evidence of relationship e.g. relevant birth certificates, marriage certificate, other relationship certificate from Tehsildar or Sub-divisional magistrate or Metropolitan Magistrate or Sarpanch of the Panchayat, or similar other identity certificates like Electors Photo Identity Card or AADHAAR card

2.       Documentary evidence of identity and residence of the proposed donor, ration card or voters identity card or passport or driving license or PAN card or bank account and family photograph depicting the proposed donor and the proposed recipient along with another near relative, or similar other identity certificates like AADHAAR Card (issued by Unique Identification Authority of India).

What are the lop holes?

The certificates can easily be fabricated.

What is the evaluation is inconclusive?

If in the opinion of the competent authority, the relationship is not conclusively established after evaluating the above evidence, it may in its discretion direct further medical test, namely, Deoxyribonucleic Acid (DNA) Profiling. The test shall be got done from a laboratory accredited with National Accreditation Board for Testing and Calibration Laboratories and certificate shall be given in Form 5. If the documentary evidences and test referred to do not establish a genetic relationship between the donor and the recipient, the same procedure be adopted on preferably both or at least one parent, and if parents are not available, the same procedure be adopted on such relatives of donor and recipient as are available and are willing to be tested, failing which, genetic relationship between the donor and the recipient will be deemed to have not been established.

What about husband and wife?

Where the proposed transplant is between a married couple the competent authority or Authorisation Committee (in case donor or recipient is a foreigner) must evaluate the factum and duration of marriage and ensure that documents such as marriage certificate, marriage photograph etc. are kept for records along with the information on the number and age of children and a family photograph depicting the entire family, birth certificate of children containing the particulars of parents and issue a certificate in Form 6 (for spousal donor).

What is the loop hole?

People can show that they are married only for the purpose of transplant.

How to gap the loop holes?

Any document with regard to the proof of residence or domicile and particulars of parentage should be relatable to the photo identity of the applicant in order to ensure that the documents pertain to the same person, who is the proposed donor and in the event of any inadequate or doubtful information to this effect, the Competent Authority or Authorisation Committee as the case may be, may in its discretion seek such other information or evidence as may be expedient and desirable in the peculiar facts of the case.

Can the treating doctor be the competent authority?

No. The medical practitioner who will be part of the organ transplantation team for carrying out transplantation operation shall not be a competent authority of the transplant hospital.

What is another way of reducing the gaps?

The competent authority may seek the assistance of the Authorisation Committee in its decision making, if required.