The High Court (HC) in the full text of a judgment suggested adopting the 9-point guideline of the Transplantation of Human Organs and Tissues Rules, 2014 of India and directed the government to amend the Organ Transplantation Act-1999 (amended in 2018) accordingly within six months.
The High Court in its judgment said, "We may profitably refer to the Transplantation of Human Organs and Tissues Rules, 2014 of India wherein some guidelines on how the authorisation committees in India regulate emotional donation. In Bangladesh, we can adopt the guidelines which are spelt out as follows."
The guidelines are--- (a) Evaluate that there is 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; (b) Prepare an explanation of the link between them and the circumstances which led to the offer being made; (c) Examine the reasons why the donor wishes to donate; (d) Examine the documentary evidence of the link.
The guidelines also included (e) Examine old photographs showing the donor and the recipient together; (f) Evaluate that there is no middleman or tout involved; (g) Evaluate the financial status of the donor and the recipient by asking them to give in support of their vocations and the income for the previous three financial years and any gross disparity between the status of the two must be evaluated in the backdrop of the objective of preventing commercial dealing; (h) Ensure that the donor is not a drug addict.
It also included (i) Ensure that the near relative or if near relative is not available, any adult person related to the donor by blood or marriage interviewed regarding awareness about his/her intention to donate an organ/ tissue, 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 shall also be recorded and taken note of.
"Besides, we think, there should be an evaluation of the mental health of the donor and the Authentication Board will have to apprise the intended donor of the possible adverse effects, if any, of kidney donation," added the court.
The court also said, "If following the above-mentioned guidelines, the authenticity of an emotional donation by a known or related donor (but not unknown or unrelated) is ascertained rigorously by the Authentication Board, there will be a check and balance and the possibility of illegal kidney trade will be greatly minimised."
"The donor must donate his kidney to the recipient under a well regulated legal regimen. In this regard, the act no 05 of 1999 and the rules of the 2018 must be amended accordingly," also read the full text of the verdict.
The HC bench of Justice Moyeenul Islam Chowdhury and Justice Khandaker Diliruzzaman delivered the verdict on December 5 last year and the full text of the judgment released recently.
One Fatema Zohra filed the petition with the HC in 2017, challenging the constitutionality of sections 2(Ga), 3 and 6 of the Organ Transplantation Act 1999 [amended in 2018]. These sections mainly focused on the definition of the related persons.
Fatema donated a kidney to her ailing daughter Fahmida, but the kidney got damaged after a year.
Then she managed a donor for her daughter, but the donor could not donate the kidney due to the bar in the law. Later, Fatema submitted the petition to the HC, seeking necessary order on the issue.
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