Legal and Ethical Aspect of Organ Transplantation in India

INTRODUCTION

After I die if I am buried I will rot. If I am burnt I will become ash but if my body is donated I will live to give life and happiness to man

Organ donation is donating a donor’s organ for the purpose of transplanting them into another person who is in need of that organ. According to the survey In India, approximately five lakh people die due to lack of organs, every year. The organ donor plays a big role in saving the life of others. In India every year, 13th  of August is celebrated as Organ Donation day  to motivate human beings to pledge to donate organs after death and spread awareness about the importance of organ donation.

Types of Donation

Two types of donations – namely Organ donation and Tissue Donation

Organ Donation

In Organ Donation, donated organs from a living or deceased person, called a donor, transplanted  into a recipient, a patient suffering from organ failure and will not survive unless he receives an organ replacement. There are two types of organ donations – Living organ donation and Deceased organ donation. 

  1. Living organ donation

Organ donation from near relatives or distant relatives/ friends of a recipient are living donors. 

  1. Deceased organ donation

 organ donation from a person has been declared brain stem dead by an authorized doctor at a hospital.

Tissue Donation

Tissue Donation is a practice in which donated tissues from a living or a deceased person referred to as a donor transplanted into the recipient who needs it.

Organs that can be donated 

Eight organs can be donated by the person while still alive and a person after death.

  • Kidneys 

The demand for kidneys is the highest of all organs. The deceased donor can donate both kidneys.  A living donor can donate one kidney and function well for the rest of their lives.

  • Liver

Bile production and excretion is primary function of the liver. It can regenerate by itself. A donated liver from a deceased donor can additionally be split into two pieces and transplanted into two different people. However, a living donor can remove a portion of his liver to donate to the recipient, and the remaining portions will regenerate.

  • Heart

It pumps blood through the human body. After the heart recovered from its donor, survived 4-6 hours only.

  • Lungs

Deceased donors can donate single or double-lung. Living donors can donate a single lobe from the lungs, although it will not regenerate.

  • Pancreas

A living donor can donate a portion of the pancreas. Still, his pancreas can function properly. A deceased donor’s pancreas can be transplanted into recipients.

  • Intestine 

Quite rarely, a living donor can donate a portion of the intestine. Although, a deceased donor can donate their intestine.

Tissue that can be donated

You can also donate tissues like corneas, skin, bones, ligaments, heart valves, etc. In less than 6 hours of the donor’s death, tissues must be donated.

Legal Aspect of Organ Transplantation in India

The main objective of the Transplantation of Human Organs Act, 1964, is to regulate the removal, storage, and transplantation of human organs and prevent them from commercial dealings. Maharashtra, Himachal Pradesh, and Goa requested the act, and was initiated and was adopted by all the states except Andhra Pradesh and J&K.

Main provisions of the THO Act (including the rules of 2014 and amendments)

  • Under form 10, as a form of death, brain death is recognized. The criteria and process for brain death certification is also defined
  • The Act allows the transplantation of human organs and tissues from living and deceased donors to the recipient.
  • It setups regulatory and advisory bodies to monitor transplanting activities.
  1. Appropriate Authority 

They have the authority to grant and inspect registration to hospitals for transplantations that enforce required standards for hospitals and conducts regular inspections to check the quality of transplantations. They also have the authority to conduct investigations regarding breach of provisions under the Act.

  1. Advisory Committee

It consists of experts who shall advise the appropriate authority.

  1. Authorization Committee

It prevents commercial dealings in transplantations and ensures that the living donor is not exploited for monetary considerations. All the proceedings are to be video recorded and decisions must be notified within 24 hours. Appeals against the committee’s decision may to the state or central government.

  1. Medical Board

It includes a panel of doctors who are responsible for certification of brain death.

  • Act states that living donors include a close relative of the recipient or a non-related donor. An authorization committee established by the state government permits the non-related donor to donate their organs.
  • Act provides that who has Authorization for organ donation after brain death
  1. The deceased person is given authority before his death. 
  2. The person in Legal possession of the body has the authorization for organ donation.
  3. Act also outlined the authorization process for organ or donation from unclaimed bodies.
  • It states that organ retrieval from any hospital having an ICU facility once registered with the appropriate authority is permitted.
  • It states that cost of donor management, retrieval, transportation, and preservation to be endured by the recipient, government, and not by the donor family.
  • It provides procedure for organ donation in medico-legal cases defined to avoid delay in retrieval of organs and determination of the cause of death
  • It outlines the infrastructure, equipment requirements, guidelines, and standard operating procedures for tissue donation banks.
  • It defined the qualifications of transplant surgeons, cornea, and tissue retrieval technicians.
  • Under the Act, the appointment of transplant coordinators was made compulsory in all transplant centers.
  • It states that the registration is required for the Ngo, registered societies and trusts, working in organ or tissue removal, storage, or transplantation field.
  • The central government must maintain a record of the donors and recipients of human organs and tissues
  • Act, at last, provides penalties for 
  1. removal of organs without authority authorization,  
  2. receiving or making payments for the supply of human organs,
  3. the Act which contravenes any other provisions.

Ethical Aspect of Organ Donation in India

The growing gap between the poor and rich and the lack of an implementation of a national health scheme, to some extent, the presence of modern technology in the country makes the process of retrieval of organs a simple, attractive, and quick business proposition for some people and a solution for others. Organ trade in India comprises a societal issue. Rich people allured poverty-stricken people with financial gains that at times can be a large amount and can meet their immediate short-term financial needs. Making human organs a commodity is not an alternative that can be acceptable to overcome organ shortages in a civilized society. It erodes moral, social, and ethical values. The ethics of organ transplantations in India has always been on a slippery slope.

Certain Myths and Facts about Organ Donation in India

  • Myth– what if a person recovers from brain death?

Fact– It is impossible to recover from brain death as many tests to establish brain death are done.

  • Myth – the donor’s family will have to pay additional charges for organ donation to the hospital.

Fact- the donor’s family will not have to pay extra money to the hospital for organ donation. 

  • Myth– if a person donates organs, he will be born without them in the next birth.

Fact– when the deceased person is cremated, his organs are destroyed anyway. Since the physical body does not survive death,  organs hold no relevance, even if you believe in rebirth.

  • Myth – organ donation and transplantation is forbidden under religions.

Facts – all religions have the concept of giving and helping others. So religion never forbids organ donation and transplantation.

  • Myth- once a person became an organ donor, he can never change his min. 

Fact- At any time, you can withdraw your registration and tear up your organ donor card and change your mind.

Conclusion

There is high demand and a low supply of organs led to its commodification. The only solution to this problem is by creating awareness about organ donation. Organ donation from one person can save up to 9 lives and improve many others’ lives. Due to the lack of awareness about the topic in India and the prevalence of myths about organ donation, a majority of people do not take up this noble cause. There are lots of loopholes in the THO Act. To a large extent,  the Act failed because of the way authorities and hospitals interpreted and implemented it.

Bibliography

  • https://www.organdonor.gov/learn/process
  • https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779960/
  • https://www.organindia.org/organ-transplant-laws-made-easy/
  • https://www.organindia.org/myths-and-facts/

This article is written by Megha Patel, a 2nd year Law Student at the Mody University of Science and Technology, Laxmangarh, Rajasthan.

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