Unconscionable Organ Donations

“Dr. Horror” Captured

An internationally wanted physician from Brampton, Ontario, was caught in Nepal last week.

Dr. Amit Kumar was wanted for harvesting organs from poor Indians, usually sold to more affluent people, including international citizens.

An Ethical Debate

The Kumar incident has sparked an ethical dialogue over organ donation.

Andrew Chung of The Star states,

Some libertarians would say that as individuals, we should be able to choose, if we so desire, to sell one of our two kidneys. It’s my kidney, after all, and I can do what I like with it.

Chung quotes Michael McDonald, of the W. Maurice Young Centre for Applied Ethics,

It’s not just another piece of property that we own, like a watch…

Who owns the body? There are just some things that are not to be bought or sold, not marketable quantities.

Chung also cites Leigh Turner, McGill University professor at the Biomedical Ethics Unit,

If a decision is uncoerced, if no one’s forcing you, you should be in a position where you can make the choice and live with the consequences…

But once you add poverty and real inequality to the mix, suddenly choice and autonomy starts to look a lot murkier.

Leigh’s last point refers a form of procedural unconscionability, a classical concept in the equitable courts of common law used to protect vulnerable parties. Equity was distinguished from the rest of common law by its intense focus on ethical issues to achieve justice.

Using the case of Dr. Kumar can help illustrate some of the principles of this equitable doctrine.

Defining Procedural Unconscionability

Procedural unconscionability is a type of equitable fraud, not involving a misrepresentation of facts, but rather through the conduct of one party in obtaining assent.[1]

Conduct is evaluated by examining whether parties meet on equal terms, and if they were taken advantage of as a result.[2]

The court can consider this a form of equitable duress which can produce an unfair result and therefore set aside to avoid perpetuating injustice.[3]

In addition to the reasonableness, the court will look at how equitable a transaction is, and how conscientious the other party is.[4]

Unconscionability therefore does not require deceit, and can be caused by distress, recklessness, wildness, or carelessness. [5] The characteristics of the relationship between the parties are also inconsequential for the purposes of unconscionability.[6]

Two Elements of Unconscionability

The presumption of fraud is established through a proof of inequality of bargaining power, and an undue advantage or benefit that impairs the weaker party from protecting their own interests.[7]

This can commonly occur between two parties where one is astute in business, and the other is older and vulnerable, and the former use their power over the other to their advantage.

Elements identified as criteria for vulnerability include ignorance, need or distress.[8]

Community Standards Test

Despite their interests in protecting vulnerable parties, the court does encourage to take responsibility for their own lives and decisions.[9] This balance is achieved by looking at the broader context in which the contract occurs through a community standards test.

A British Columbia Court of Appeal case found that a transaction between a businessman and a Native fisherman was unconscionable, and rescinded it as it impugned commercial realties.[10]

This has been followed by courts in other jurisdictions, specifically looking at the tactics used to obtain the contract. A more recent case from the B.C. Court of Appeal affirmed the use of the given views of a community,[11] but the dissent preferred assessing only if it was fair, just and reasonable.[12]

Awareness of Party
Another element of unconscionability is the potential need for the stronger party to be aware of the other’s vulnerability.

Canadian courts are largely silent on this issue, but the current status is that it is not considered material whether the stronger party was unaware of the other’s weakness, or even if they had no notice or indication that such weakness might be present.[13]

Procedurally Unconscionable

Harvesting organs from poor people in India obviously relies on immense inequalities in bargaining power. The benefit received from by the donee is claimed to be offset by the substantial amount of compensation provided to the donor, which is even more significant when Westerners pay in their funds. But Turner also stated,

Some of the poorest people on the planet, can they really be making an autonomous choice that by not selling the kidney they can’t buy food to eat? It’s really not a free choice of any kind.

It’s also important to note that some of the harvestees were explicitly unwilling, and all of the cases expressed signs of economic disadvantage. Dr. Kumar would have known of the obvious inequality of bargaining power between himself and the impoverished persons of India, irrespective of this issue in different jurisdictions.

Although libertarian ideology seeks to maximize the rights of the individual, in many instances – including this one – it surpasses legal constraints. The criteria in this case and the standards of the international community at play all make this type of exploitation unconscionabile.



[1] CIBC v. Ohlson (1997), 209 A.R. 140 at para. 20.

[2] Wood v. Abrey (1818), 56 E.R. 558 (Ch.).

[3] Stewart v. Canada Life Assurance Co. (1994), 132 N.S.R. (2d) 324 at 334 (N.S.C.A.).

[4] Campbell v. Campbell (1990), 83 Nfld. & P.E.I.R. 340 at 349 (Nfld. U.F.C).

Stel-Van Homes Ltd. v. Fortini (2001), 16 B.L.R. (3d) 103 at paras. 125-127 (Ont. S.C.J.).

[5] Waters v. Donnelly (1884), 9 O.R. 391 at 401-402 (Ch.).

[6] Black v. Wilcox (1976), 12 O.R. (2d) 759 at para. 196 (C.A.).

[7] Bank of Credit & Commerce International v. Aboody (1990), 1 Q.B. 923 at 924 (Q.B.D.).

[8] Supra note 3 at para. 4.

[9] Pelech v. Pelech (1986), 1 S.C.R. 801 at para. 85.

[10] Harry v. Kreutziger (1978), 95 D.L.R. (3d) 231 (B.C.C.A.).

[11] Gindis v. Brisbourne (2000), 183 D.L.R. (4th) 431 (B.C.C.A.) at paras. 23-27.

[12] Ibid. at para. 35. Though upheld at the Supreme Court of Canada, the distinction between the two tests and which of the two was superior was not reviewed.

[13] Marshall v. Canada Permanent Trust Co. (1968), 69 D.L.R. (2d) 260 (Alta. S.C.).