The High Court has issued nine-point guidelines to regulate kidney donation by close relatives or known donors.
A bench of judges Moyeenul Islam Chowdhury and Khandaker Diliruzzaman has recently issued the directives in its full verdict available in the Supreme Court website on Thursday.
On December 5, 2019, the bench allowed emotional kidney donation by close relatives or known persons by amending the Transplantation of Human Organs (Amendment) Act 2018 within six months.
The bench delivered the verdict after disposing of a writ petition filed in 2017 by a kidney patient’s mother Fatema Zohra.
She challenged the legality of Sections 2 (C), 3 and 6 of Organ Transplantation Act 1999, which was amended in 2018, that only allowed donation of human organs to ‘near relatives.’
Fatema donated her one kidney to her ailing daughter Fahmida, but, the kidney got damaged after a year.
Then she invited a donor who could not donate kidney due to the law.
The verdict said that the Transplantation of Human Organs Act 1999 provided a very narrow definition of donor, ‘that is to say, “near relative”’.
‘The already large gap between demand and supply of kidneys is further increased by this narrow definition of donors leading to kidney patients dying without any transplant,’ the verdict said adding ‘The large gap particularly affects the poor by creating a black market for kidneys where abuses are rampant.’
The verdict said that if the definition of a pool of donors (near relative) was expanded without any restriction whatsoever, ‘that will definitely spur the illegal kidney trade in Bangladesh to an unimaginable extent. So any wholesale expansion of the definition of pool of donors (near relative) cannot be countenanced.’
The verdict said that to determine and verify the authenticity of emotional kidney donation, there should be an inquiry in the light of the guidelines mentioned below.
The verdict said that the exceptional circumstances as in the case of the present petitioner might be determined by the Authentication Board in Bangladesh like the Authorization Committee in India.
The court said that the board must ensure that the near relative or if near relative was not available, any adult person related to the donor by blood or marriage to donate an organ or tissue.
And that case, the authenticity of the link between the donor and the recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin should also be recorded and taken note of, said the verdict.
The board needs to evaluate that there would be no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person.
The board also needs to prepare an explanation of the link between donors and recipients and the circumstances which led to the offer being made.
The board must examine documentary evidence of the link and old photographs showing the donor and the recipient together to examine the reasons why the donor wishes to donate.
The board needs to evaluation that there was no middleman or tout involved.
The board also requires evaluating financial status of the donor and the recipient by asking them to give evidence in support of their vocations and the income for the previous three financial years and any gross disparity between the statuses of the two parties to prevent commercial dealing.
The board also requires ensuring that the donor was not a drug addict.
The court directed the Authentication Board to evaluate the mental health of the donor to apprise him of the possible adverse effects, if any, of kidney donation.
If following the above-mentioned guidelines, the authenticity of an emotional donation by a known or related donor (but not unknown or unrelated) was ascertained rigorously by the Authentication Board, there would be a check and balance and the possibility of illegal kidney trade will be greatly minimized, said the court.
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