The success of the THOA discouraging organ sale significantly depends on an actual rise in cadaveric organ procurement. It is striking that 18 years after the implementation of the THOA, there have been relatively few cadaver donations. In India, a mere 0.05 per million of the population are brain dead donors.⁹ Among cadaveric organ transplantations done over a period from 1995 to 1999, 141 transplants took place in Chennai, the capital of Tamil Nadu, as compared to 60 in Delhi, and 21 in Mumbai. In other cities, Varanasi for example, there are no cadaveric organ retrievals happening at all; only living donations are allowed. While, in terms of size and magnitude of the city, it might be more honest to compare numbers in Chennai with numbers in Lucknow, the capital of Uttar Pradesh, it became apparent that even in Lucknow only four cadaver organ retrievals took place while I was doing my research (P.C. 05/03/ 2011). Given its cadaver donation numbers, Tamil Nadu is said to be “at the forefront in India” (Shroff et al. 2007).

The pronounced interregional differences have a complex set of related causes, of which I will mention two. First, Chennai immediately moved on to include multi-organ harvesting. Second, Tamil Nadu has more infrastructural and administrative support available to medical care as compared to other regions. Yet, during my fieldwork I found that cultural attitudes regarding death and the ritualized handling of decaying bodies help explain why a widespread acceptance of cadaveric organ harvesting and transfer in India is problematic and why regional differences are as blatant as they are.¹⁰ In the context of this chapter I can only touch on a few of these cultural attitudes.

In India, a gift is seen as potentially poisonous and harmful,¹¹ especially when gifts are given anonymously as prescribed by universalistic bioethics. Indian gifts can be considered a context for a transmission of “spirit” to occur (Laidlaw in Copeman 2011). Food, clothing, and body parts are especially powerful media for the transmission of bio-moral qualities.¹² Considering that certain castes are considered to be more “polluting” than others, gifts are not easily given across caste boundaries. The risk of pollution is annihilated when a payment is made in exchange for the gift: payment cancels out the wings of indebtedness on which pollution travels. From this perspective, organ sale offers a comparative cultural benefit over organ donation.¹³ A similar risk is present for an organ donor. He or she becomes responsible for the karma of actions performed by the recipient whose life was saved. Secondly, obtaining organs from the bodies of the dead interferes with a cultural attachment to full-body cremation.¹⁴ A death ritual is enacted according to a blueprint of a regenerative ritual that operates in adherence to a sacrifice of the self to the cremation fire.¹⁵ Many informants fear that when organs are donated before the full body has been cremated, they will not have these organs in their next life. The use of organs from the dead is not without conflict either, since it mixes up categories of the pure and impure: the dead live on in the bodies of the living, which resembles the feared affliction of spirit possession.¹⁶ Furthermore, regional differences coincide with leanings towards Vaishnavite, Shaivaite or Shaktist streams of Hinduism, the latter being prevalent in the region of Tamil Nadu. All have different ways of looking at the body-mind-soul complex and prescribe different procedures to untie it. Tamil Nadu is a region where Christianity is more present, which influences the acceptance of practices of cadaveric organ donation in and of itself.

I elaborate on cultural aspects in more detail elsewhere.¹⁷ What is important is that cultural reasons help explain the unpopularity of the practice of cadaveric organ donation in India,¹⁸ regardless of the universalistic pretenses of the practice. As a result, the first important crack in the success of the THOA has been that the rise in organs available from brain dead patients has been minimal. This has consequences for the second aim of the Transplantation of Human Organs Act, namely, the goal to eradicate illegal kidney trafficking. It is estimated that an average of 2000 people sell their kidney annually,¹⁹ whereas there are only 50 cadaver donors per year.²⁰

With the THOA, by better meeting the high demand for organs, policy makers aimed to reduce the possibility of making lucrative financial gains on illegal organ markets and thus nip sales in the bud. The THOA thus rests on the assumption that cadaveric organ donation is suitable in an Indian context and, that organ shortage can be met, at least enough to bring about a significant drop in (mostly) kidney prices. Yet, as I pointed out, the increase in supply from cadaver organ donations has been minimal in India. Is there a ceiling to the need for organs? In this section, to get a better perspective on the gap between supply and demand, I scrutinize how the demand for organs has evolved.

If around 200,000 kidneys and 100,000 livers are needed every year in India, only 2–3 % will become available.²¹ The claimed demand can thus be expected to continue to grow with the availability of organs and the increasing acceptance of organ transfer as a procedure. Researchers have indeed argued that a higher availability of organs often coincides with an increase of referrals to waiting lists.²² The rising incidence of diabetes and hypertension further increases the rate of organ failures. Even in countries that have had successful cadaver donation programs, organs from this source have failed to meet an ever-increasing demand, which led to a resurgence of transplant programs that focus on living donors to complement the former.²³ On top of an increasing national demand, the rise of medical tourists traveling to India to obtain a kidney further enhances the gap between supply and demand.