Organ Transplantation and the Culture of Alienability of the Female Body

This is a guest post by Jinal Dadiya (BCL Candidate at Exeter College, Oxford University)

Despite an internationally felt need for the availability of more organs for medical transplantation, the sale of human organs and tissues is outlawed in most countries. Expectedly, this has encouraged the growth of an illegal, exploitative market for organ trade, hidden well under the carpet. Governments, then, feign blindness to the existence of such trade, incapacitating themselves from regulating it. Consequently, the market thus created is unfair and exploitative. “In general, the flow of organs, tissues, and body parts follows the modern routes of capital… from female to male bodies.”[1] Empirical studies in India highlight that the number of women who donate their organs is exponentially higher than their male counterparts.[2] At the same time, there remains established scientific consensus that there are no relative advantages of donations of organs from female bodies over those from male ones, renders this trend a cause for concern.[3] This essay examines how the very language and structure of the Transplantation of Human Organs Act, 1994 (hereinafter the “THO”) allows for its objectives to be circumnavigated to allow the existence of a gendered market for organ transplantation. It then comments on how such body politics have given rise to a Culture of Alienability of female body parts, thereby eroding the idea of equal citizenship.

One of the two ways in which the Transplantation of Human Organs Act, 1994 (permits living organ donation is by allowing for it to take place between ‘near-relatives’. The THO defines the ‘near-relatives’ of a person restrictively to include only his/her “spouse, son, daughter, father, mother, brother or sister”;[4] a list which was recently expanded to include grandparents and grandchildren as well.[5] Authorities who sanction Donation naturally presume that a wife, irrespective of how suspicious the conditions of her marriage may be, is willing to grant her body parts to her husband, solely out of love and affection.[6] While the Authorities are entrusted with the task of ascertaining the consent of donors, this consent remains vitiated due to internalised sociological and psychological factors.[7] Interviews conducted by the researcher indicate that in almost all cases of near-relative transplants, consent is vitiated through (i) economic or other kinds of influence, or (ii) it being originated in conceived notions of the role of the woman and diminished value of her body within the family, or (iii) relative absence of consenting male donors.[8]

The other kind of living organ donation permitted under the THO is of the kind prompted by considerations of “affection and altruism”. Designed as a safeguard against the commercial sale of organs while allowing for their availability to those who need it, this provision requires the Authorization Committee to scrutinise all such cases in order to verify whether the said donation was prompted my genuine considerations of ‘affection and altruism’.[9] Regrettably, studies show that most donations prompted by “affection and altruism”, are made by women.[10] M.K. Mani, argues that “they ­(exploitative middle-men) do them (kidney sales) with the seal of approval from the Authorisation Committee, and are therefore a very satisfied lot. The law, which was meant to prohibit commercial dealings in human organs, now provides protection for those very commercial dealings”, indicating the THO, by necessary implication, is blind to these sales.[11] Cultural studies in Kidneyvakkam and Ayanavaram ascribe this to the perceived role of the female in society and economics, both limiting her ability to choose her profession as well as making her more vulnerable to invasive processes in order to be more economically valuable than men.[12] While a woman is not free to work in more rewarding professions due to constraints of societal conditioning and opinion, she is expected to sell her organs as an apologetic compensation for her perceived inability to the economically useful; subjecting her to an exploitative market and the mercy of untruthful middle-men and false promises.[13]

Sociological conceptions relating to the roles of women within families, the kind of occupations they may engage in, the economic value of their bodies and the tacit reluctance of men donating their organs has led to the creation of this Culture, according to which the body parts of a woman are mobile and can compensate for the relatively diminished economic role.  A Culture of Alienability of Human Organs necessarily rests upon the premise of their commodification.[14] When organs are traded in order to supplement the income of a family, it leads to the ‘collateralisation’ of the human body.[15] On the other hand, the prevention of commodification lies at the heart of the reason for the criminalisation of commercial dealings in Human Organs.[16] Commodification of human organs is said to deny the subjectivity of human beings, leading to their being treated as fungible instruments.[17] The commodification and collateralisation of human organs, then, takes away from the very purpose of the criminalisation of commercial trade in organs, both in India and internationally.

A Culture of Alienability of female organs, even when prompted solely by filial affection or altruism, then, strikes at the very objective of the THO. It has been argued out that the existence of such a parallel dialogue between the State and females denigrate them to the status of second-grade citizens. Cecelia Van Hollen argues that the gendered treatment of the human body in all spheres of public health creates different classes of citizens, with women occupying a significantly inferior position.[18] Consequently, the Culture of Alienability of Female Organs and their Commodification has clearly rendered female bodies as belonging to second-grade citizens to whom the logic and purpose of the THO does not apply, even as its framework continues to do so.

---

[1] S. Shroff, Legal and Ethical Aspects of Organ Donation and Transplantation, Vol. 25(3), Indian Journal of Urology, (July-Sept., 2009).

[2] Id, also see L. Cohen, Where It Hurts: Indian Material for an Ethics of Organ Transplantation, Vol. 128(4), Bioethics and Beyond , 147, (Fall, 1999).

[3] F. Ge, T, Huang, S. Yuang, Y. Zhou, W. Gong, Gender Issues in Solid Organ Transplantation and Donation,Vol. 18, Ann Transplant, 508, (2003).

[4] S. 2(9), The Transplantation of Human Organs and Tissues Act, 1994.

[5] S. (1), The Transplantation of Human Organs and Tissues Act, 1994.

[6] S. Shroff, Legal and Ethical Aspects of Organ Donation and Transplantation, Vol. 25(3), Indian Journal of Urology, (July-Sept., 2009).

[7] S. Carney, The Red Market, (Hachette India, Gurgaon, 2011).

[8] Interviews with Interview with Mrs. A, aged 60 years, Kolkata, on 29^th January, 2015 and Mrs. Y, aged 35 years, Kolkata January, 2015 (Names of the interviewees changed. On record with the author) . Further, Interviews with the Hospital Authorisation Committee and Competent Authorities, BGS Global Hospital, 25^th April, 2015.

[9] See S. Shroff, Legal and Ethical Aspects of Organ Donation and Transplantation, Vol. 25(3), Indian Journal of Urology, (July-Sept., 2009), and S. Carney, The Red Market, (Hachette India, Gurgaon, 2011).

[10] Id.

[11] M.K. Mani, The Nephrotoxicity of the Tsunami, Letter No. 154, Vol. 20(3), National Medical Journal of India, (May/June, 2007), available at http://www.nmji.in/archives/Volume_20_3_May_June/Letters/Letter_from_Chennai.htm, (last visited on January 15^th, 2015).

[12] L. Cohen, Where It Hurts: Indian Material for an Ethics of Organ Transplantation, Vol. 128(4), Bioethics and Beyond , 147, (Fall, 1999).

[13] S. Carney, The Red Market, (Hachette India, Gurgaon, 2011).

[14] K. M. Bridges, On the Commodification of the Black Female Body: The Critical Implications of the Alienability of Fetal Tissue, 123, Columbia Law Review, Vol. 102, No. 1 (Jan., 2002).

[15] Supra note 7 at 141.

[16] See B. N. Colabawala, Issues in Organ Transplant, Indian Journal of Medical Ethics, (2002) and S. Wilkinson, Commodification Arguments for the Legal Prohibition of  Organ Sale, Vol. 8(2), Health Care Analysis, 189, (June, 2000).

[17] S. Wilkinson, Commodification Arguments for the Legal Prohibition of Organ Sale, Vol. 8(2), Health Care Analysis, 189, (June, 2000).  

[18] C. C. V. Hollen, Moving Targets: Routine IUD Insertion in Maternity Wards in Tamil Nadu, India, Vol. 6(11), Reproductive Health Matters, 98, (1998) as cited in L. Cohen, Where It Hurts: Indian Material for an Ethics of Organ Transplantation, Vol. 128(4), Bioethics and Beyond , 147, (Fall, 1999).