The 2021 statistics report of the National Organ and Tissue Transplant Organisation (NOTTO) of India has brought attention to a significant gender disparity: 80% of organ recipients were male, while, 75% of organ donors were female. This phenomenon has become entangled in the complex existing web of intersectional discrimination in India, which deviates from the principles of justice and equality enshrined in Articles 14 and 15 of the Indian Constitution. Moreover, the gender inequality in organ donation and transplantation in India reflects discriminatory practices and is a manifestation of patriarchal ideologies that marginalize women’s accessibility to healthcare facilities. This gender imbalance constitutes a violation of women’s right to health and medical care, which were recognized as essential aspects of the right to life under Article 21 of the Indian Constitution in the landmark case of Francies Coralie Mullin v Union Territory of Delhi.
Female organ donors are influenced by sociocultural factors and financial dependency. Financial independence may reduce their inclination to donate. Additionally, one of the psychological factors contributing to the gender gap in organ donation is women’s prior experiences, like childbirth, which enhance their trust in the medical system. Mothers are the primary organ donors among parents accounting for 73% of donations, while wives contribute 91% of donations in married couples. Regarding this gender inequality, Dr Pranjali Modi, the convenor of the State Organ and Tissue Transplant Organisation (SOTTO), has emphasized that patriarchal beliefs play a significant role in the general reluctance to accept organ donations from men, who are often considered to be the primary breadwinners in families. Moreover, when men donate organs, financial difficulties might arise during the evaluation, surgery, and recovery phases, which can result in the coercion of women to undergo organ donation surgery.
Relatedly, there is a subconscious prioritization of men over women for life-saving treatments, such as organ transplantation, based on the perceived economic importance of their roles. These biases are also apparent within medical institutions and professions, potentially affecting doctor-patient interactions and resulting in gender inequalities in organ transplant procedures. However, a notable scientific reason for the gender disparity in organ transplantation is that pregnancy sensitizes women’s immune systems, potentially diminishing the compatibility of their organs with those of their blood relatives, which are those individuals who are most inclined to donate organs. Further, women waiting to receive organ donations, due to their typically smaller stature, encounter a greater likelihood of being declined organ offers, leading to a higher risk of death or removal from the waitlist compared to small-stature men. This inherent bias in healthcare exacerbates gender inequalities in organ transplantation access for women. These factors, altogether, contribute to unequal access to organ transplantation, a critical healthcare intervention, as evidenced by a longitudinal study spanning 15 years which revealed that a mere 15% of female individuals were organ recipients in the nation.
This healthcare outcome contradicts the stipulations outlined in Article 12 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), which acknowledges the entitlement of every individual to achieve “the highest attainable standard of physical and mental health.” Additionally, the importance of guaranteeing equitable allocation of health facilities, goods and services among both men and women has been underscored in the remarkable case of Karukola Simhachalam vs Union of India and Ors (WP PIL No 164 of 2019). The case further emphasized the necessity of counteracting any hindrances to the full realisation of the right to health and eradicate discriminatory practices for all people. Nevertheless, any practice embedded in gender bias not only perpetuates disparities for women but also undermines the very bedrock of equality principles. This practice is vulnerable to legal scrutiny under the Universal Declaration of Human Rights, which accentuates the significance of legal egalitarianism, the right to health, and well-being.
It is imperative to confront gender imbalances to foster a society characterised by equality, inclusivity and the protection of women’s rights. Although the Transplantation of Human Organs Act, of 1994 ostensibly maintains a gender-neutral stance, the actual implementation unveils a fabric intricately woven with evident gender disparities and prejudices. The dissonance between legal intent and application of the legislation in practice underscores the need to erase gender stereotypes and inequalities within the organ transplantation and donation domain.
Addressing the issue of gender disparities in organ transplantation necessitates raising awareness as a foundational step. To mitigate disparities among disadvantaged groups, it is crucial to implement transplant centers and community initiatives targeting rural and marginalized areas and establish transplant centers in those places as well. The pre-transplant assessment should encompass psychosocial and economic dimensions to identify any potential negative motivations for donation, such as underlying abuse, coercion, threats and violence. Conducting research studies and collecting accurate statistics at the grassroots level is also imperative for developing policies that promote equality and fair access to organ transplantation. Additionally, overcoming biological barriers in transplantation procedures requires the implementation of science-backed policies.
Lastly, providing medical assistance to organ donors for the transplantation process and offering medical support to organ recipients from vulnerable communities are essential steps that Indian government should take. However, addressing gender imbalance requires more than just focusing on education and poverty alleviation. It necessitates a deeper examination of traditional gender roles and the roles of women within their families. Policies must be implemented to ensure that women receive equitable access to transplantation services, regardless of their societal status or financial standing within the family.
Manvitha B S is pursuing a BA LLB Hons at Rajiv Gandhi National University of Law. She is interested in Human Rights, Criminal Law and International Law. She is a member of the Law Development and Research Network, and aspires to bring about positive change in the realm of human rights and create a more equitable and inclusive society.