The Kerala High Court, in a landmark judgment on 25 th May 2017, allowed Mr Abdul Rahman to accept one of the kidneys of his unrelated friend, one  Mr Prasad, overruling an earlier state-constituted Authorisation Committee's decision, denying permission for a transplant. The grounds for objection was that their different socio-economic status did not support the possibility of love and affection between the donor and the recipient.
 
Two young advocates, Jikku Seban George and Phijo Pradeesh Philip, representing both the donor and the recipient, argued before the single bench of Justice PB Suresh Kumar,  that the premises for refusing a transplant was arbitrary. The judge saw no reason or commercial element in the transaction.

In a 2001, article in a leading Indian newspaper, I had questioned the arbitrary nature of The Human Organ Transplantation Act of 1994 which did not permit transplantation between unrelated persons except if they could prove ' love and affection'. In a subsequent conversation with a member of the TN authorisation committee member, it became clear that one of the key objective criteria for establishing 'love and affection' was through photographs showing the donor and recipient together.

It is high time that the Human Organ Transplantation Act is amended to make transplants free from unreasonable restrictions. The repeated argument by votaries of stringent regulations are based on 'ethics'. The state's notion of ethics is premised on the prevention of any economic advantage to a recipient.

Understandably, there can be widespread exploitation of individuals in a poor country like India. The illegality and criminal coercion of donors is a result of unscrupulous middlemen who end up being the biggest beneficiaries of such transactions. The responsibility of the state should therefore be an endeavour to cut out the middlemen rather than discourage donations. The only way to do so would be for the state to take the responsibility of proactively enabling live transplantations rather than act as a mere regulator.

The government has actively promoted blood donations by eliminating middlemen. Payment for donations has been mooted by several activists as a practical way to encourage donations to meet the requirement of organs from live donors. The corporeal owner of the kidney should have the freedom to donate as long as he is certified fit and is not under coercion.

Depending on only cadaver donations will not meet the dire needs of hundreds of thousands of people awaiting organ donations.
Several organs such as kidneys, liver etc can be donated by living persons without causing any health issues to the donor. The debate on compensating living donors has always been struck down by most societies as being ' unethical'. The notion is a paternalistic attitude by the state in the guise of preventing exploitation.

The government should in fact be constructing transparent systems to legalise and ensure benefits accruing to the donor. If open donations are legitimized,  it will cut out the criminal elements in our system. Minos P Malek, who teaches economics at San Jose State University, in an Internet post, questions the noise being made about paid transplants.  

He says “If money is the catalyst that relieves shortage, and if the money/organ exchange is voluntary, then why prevent this transaction? Obviously, I want the money more than an (extra) kidney, and the sick person wants the kidney more than the money. This is a mutually beneficial exchange.”

Contrary to popular belief, these open transactions will cut out the middlemen and the benefits will go to the donor and recipient (and of course, the hospital). 

 The argument that the poor are incapable of taking decisions is a specious one. A well made out argument in favour of an open market has been suggested by Nancy Scheper-Hughes of Berkeley, California. She has personally visited and worked in 12 countries and collaborated with national governments to end trafficking of human organs.

She argues that ‘everyone under the current system benefits, except the donor’. The patient gets a new kidney. The hospital and physicians are paid. The drug companies get to sell life long drugs. Why should only the donor be governed by altruism?”
It is estimated that 160, 000 patients are awaiting renal transplants in India and only 5000 transplants took place in 2016.  

There is an obvious case of demand and supply discrepancy. The Kerala High Court decision might yet be the thin edge of the wedge that will open up the possibility of paid transplants by creating a state-promoted, transparent system that benefits both the donor and the patient. To understand the pain of suffering, ask a patient awaiting a kidney transplant. 
 
 Dr George Paul is an Oral and Maxillofacial Surgeon with a law degree. He has a post graduate qualification in medical law and ethics from the National Law School of India University and writes on issues of law and ethics in medicine
 

 Views expressed are personal