Legality of Organ Transplant in India

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This post has been written by Mamta Kumari, a law student from Banasthali Vidyapith.

ORGAN TRANSPLANTATION: MEANING

Transplantation of organ is a process where the organ is transferred surgically from one body to another. The organ is transferred in the state of failure or missing of organ in the body of a human being. Medical science and technology have achieved a great success in transplanting human organ which removes the organ from its original place and fixes it in body of different body.

The person from whose body the organ is picked and donated is known as donor and the one who receives that organ is know be a recipient. The organ is donated to replace the damaged organ with the healthy and working organ so that the body of recipient body would be able to work properly and gets new life.

There are so many patients today who are in need of organ transplantation due to which the supply of human organs by the donor is also exceeding. This increase in demand and supply of human organ for transplantation needs the enactment of legislation for governing the legal transplantation of it. There are two types of donor i.e. living donor and dead owner of the organs whose transplantation of organ is allowed by the law.

LEGAL ASPECT OF ORGAN TRANSPLANTATION

Donation of human organ is a regulated by the legislation formulated by the legislature. Under law both the living as well as dead person are allowed to donate their organs. Any kind of commercialization of human organ which involves money and other benefits would be illegal under law. Legislation which regulates the transplantation of human organ is as follows-

TRANSPLANTATION OF HUMAN ORGANS ACT,1994

Emergence of Act

The emergence of Transplantation of Human Organ Act is not vague as it also has a short historical background behind it. The transplantation was first performed with the human kidney during 1970s. The transplantation in that phase was restricted only by a living donor to the recipient. In the next decade the transplantation of kidney was used as a commercialization for many people and was known as the kidney trade in India.

With more advanced technology and trained staff, the transplantation of activities also increased and the kidney trade started highlighted by media. After looking into the kidney scams, the Central Government directed a committee to form a report regarding the illegal commercialization of kidney. This led to the formulation of legislation relating to organ transplantation in India.

The Government of India then enacted a legislation called The Transplantation of Human Organs Act in 1994 for

Aim and Objective of the Act-

The increase in illegal selling of human organs by poor people convinced the legislature to enact legislation regulating the transplantation of human organ. The Transplantation of Human Organ Act, 1994 was enacted in 1994 and further the related rules were also framed in 1995.The Act was enacted to regulate the system of removal, storage, and transplantation of human organs. It also deals with prevention of illegal commercialization of human organ. There are almost all the states who have adopted the legislation and formulated their own laws relating to organ transplantation.

The Act contains provisions related to-

  • Authority which look into the removal of human organs
  • Regulation of hospital
  • Regulation of removal, storage and transplantation of organ
  • Punishment and penalties relating to illegal acts
  • Functions of appropriate authority

Sources of organ donation

  • Close relatives like mother, father, daughter, son, sister, brother or spouse can donate organ to the recipient.
  • Person other than close relative can also donate only out of love and affection or due to any special circumstances with the permission of authorized committee.
  • Dead person can also donate specially in case of brain stem death or cardiac death.

SHORTAGE OF ORGAN LEADS TO ORGAN TRAFFICKING

Due to poverty, person opt for various illegal acts for fulfilling their needs and one of that illegal acts can be trafficking of organs. The shortage of organ also leads to this condition where a person sell his organs to wealthy patients in the case of failure of organs. There are more than one lakh people who suffers from organ failure and these innumerable patients do not get organs even there are so many people who dies naturally or due to accidents were potential donors.

Another reason for shortage of organ can be the hesitation of people to donate the organ. The negligence of doctors in inquiring the family members of the person who have died regarding the donation of the dead person can also be one of the reasons.

CONSENT OF DONOR

The law must ensure that the donor of the organ have given his valid consent before donating his organ as these should not be any kind of coercion, undue influence, deception etc. The donor must also be informed about all the consequences of transplantation by the hospital authorities so as to ensure the wilful assent of the person.

There are so many cases where the donation of organ is made by the women and poor. The women are induced or forced by their husband and family to donate their organs out of their greediness of money as they think that women are of not much use and are not engage in outside activities and their organs are of no worth while fixed in their body. The poor people due to increase in poverty and in need of money sell their organs and engage themselves in illegal trafficking of organs.

CONCLUSION

There have been almost five decades since the organ transplantation is started and is one of the greatest success by the medical science. But it cannot always be taken in positive way as there are negative effects also regarding the achievement i.e. the trafficking of organs and exploitation of poor. The trafficking of organs and exploitation led to the enactment of legislation which made all the possible efforts to regulate the legal transplantation of human organ. The legal framework also legalizes the brain stem death where the brain of the person stops functioning and a person cannot breathe on his own and can be maintained by keeping the person under ventilators and by supplying the oxygen etc. This brain stem death is a legal death as recognised under the Transplantation of Human Organ Act,1994.

REFERENCES

The Transplantation of Human Organ Act,1994

https://dghs.gov.in/content/1353_3_NationalOrganTransplantProgramme.aspx

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779960/#:~:text=The%20legislation%20called%20the%20Transplantation,of%20organs%20a%20punishable%20offence.

https://scroll.in/pulse/861390/indias-laws-on-organ-transplants-to-little-to-protect-rights-of-organ-donors

Image from https://www.healthxchange.sg/men/heart-lungs/types-organ-transplants

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