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Organ donation is the process of obtaining an organ or portion of an organ from a live or deceased person and then transplanting it into another human being (OD). After passing a psychological and medical examination, individuals can donate 25 different organs and/or tissues, according to sources. According to the Organ Procurement and Transplant Network (OPTN, 2015), a single donor’s organs might potentially save up to eight lives. The most frequently transplanted tissues are corneas and musculoskeletal grafts, whereas the most frequently transplanted solid organs are kidneys, livers, and hearts. Over the past 20 years, the rate of organ transplantation has gradually risen. Although it has produced good results in kids and teenagers, an increase in the number of elderly transplant patients who also have co-morbid conditions poses a difficulty.


In India, organ transplantation has a shorter history than in the world’s most developed nations. In the 1970s, the first kidney transplant was carried out in India. The number of transplants increased in the 1980s and early 1990s, although they were mostly limited to kidney transplants using live donors in a few urban locations. Kidney transplantation activities gradually increased as new facilities opened and the pool of qualified personnel grew. But this resulted in the well-known kidney trafficking in India in the 1980s, which received extensive media coverage. Patients from other countries began to swarm to India for transplants from paid donors.

The Central Government established a commission in 1991 to provide a report that would serve as the foundation for legislation controlling organ transplantation throughout India in light of the country’s continuing kidney scandals. Additionally, it was done in order to provide a clearer explanation of the term “brain death.” The Indian government passed The Transplantation of Human Organs Act (THOA) in 1994. The Transplantation of Human Organs Rules, which were last updated in 2014, was also adopted in 1995, expanding the scope of donation to include tissues for transplant. The Act criminalized the sale of organs, formalized the idea of brain death in India, and permitted deceased organ donation using the brain stem of the deceased.


When an individual’s organ starts to fail or deteriorate and they need a transplant to survive. If a person is a good candidate for a transplant, a transplant centre will undertake a comprehensive evaluation and add them to the National Transplant Waiting List. The clock starts to run and the wait for an organ begins once the person is added to the list. It is a mechanism that matches donors with patients on waiting lists. Blood type, body size, the severity of the patient, proximity to the donor, tissue types, and length of the waiting list are used to categorize donors. Organs are never matched based on: 

  • Race
  • Cast
  • Gender
  • Economic status
  • A person with a special status in society.


There are mainly 2 types of Organ donation:

  1. Living Donor: A living donor is an adult who has given their agreement to have their organs or tissue removed while they are still alive. Legally, a person may donate:
    • Only one Kidney, as the recipient’s body, may still operate normally without it.
    • A fraction of the pancreas, up to half of it, can effectively carry out pancreatic activities.
    • A fraction of the pancreas, up to half of it, can effectively carry out pancreatic activities.
    • Both the donor and the recipient’s liver can regenerate over time, with the other section of the liver being able to do so.
  2. Deceased Donor: (Donor who has passed away) Organs may be donated when a person has experienced cardiac death (when the patient’s heart stops pumping) or brain death (total loss of brain function). If the person has achieved the age of majority and is ready to give their organs after death, their agreement can be obtained while they are still alive (before death).
  3. Even if the patient had previously given his approval for his organs to be donated during his lifetime, the Act mandates that the hospital ask a close relative or the person legally in charge of the body’s custody for permission once the patient is confirmed brain dead.


The term brain death refers to a condition in which all of the brain’s functions have ceased to operate and cannot be restored. Despite this, the ventilator’s ability to provide oxygen may allow the heart to continue beating. But in this circumstance, it is safe to declare the patient dead. The THOA defined brain death as the stage at which the brain-remaining stem’s functions have completely stopped. The panel of medical experts must certify the same. Before doctors can declare a patient to be “brain stem dead,” THOA Rules list a few prerequisites that must be met. The medical expert board must proclaim it following two thorough examinations of the body spaced around six hours apart.


The donation of human organs is governed by legislation passed by the legislature. The law allows both live and deceased people to donate their organs. A human organ cannot be sold for profit or with other incentives. This is against the law. Organ transplantation is governed by the following legal provisions. The primary legislation, The Transplantation of The Human Organs Act, 1944 covers organ donation and transplantation (THAO). It sought to uphold appropriate regulations for the removal, preservation and transplantation of organs for medical purposes. The primary responsibility of the law is to stop transplant commercialism. The state of Maharashtra, Goa, and Himachal Pradesh first suggested the necessity for such an Act, and all states except Andhra Pradesh and Jammu & Kashmir later agreed. However, the incidence of human trafficking and the sale of human organs for profit remained unchanged. As result, the need for the modification to correct the Act’s inconsistencies was felt in 2009. The Indian Parliament approved the change in 2011, and rules were written for it in 2014.


  • A specific group of experts who make up the authorization Committee must be organized at the state and centre levels. The committee would be accountable for keeping track of information about available organs and approving requests for organ transplantation.
  • Only the registered medical professionals in authority will be given the responsibility of executing the procedure to remove the organs from the deceased’s body.
  • The Hospital where the transplant would be performed must obtain approval from the State Authorities in order to be recognized as an approved centre.
  • Before the transplant is about to start, a person cannot be pronounced brain dead without the consent of a trained neurosurgeon.
  • If no one in the family opposes, the relative may consent on behalf of the deceased.


  1. According to Section 18 of this Act, any individual who has legal permission to remove a human organ or tissue may be penalized with up to 20 Lakhs as a fine and 10 years imprisonment. If the offender is a medical professional, the AA (Appropriate Authority) will submit his name to the State Medical Council, which will then take the required action. This may include deleting his name from the council’s register for three years for the first violation and permanently if they commit the offence subsequently.
  2. According to Section 19, anyone involved in the commercial trading of human organs can be penalized with imprisonment for a time not less than 5 years but may not exceed 10 years, as well as being subject to a fine of not less than Rs. 20 lakhs but may not exceed Rs. 1 crore.
  3. According to Section 20, any individual who breaches any other clause of this Act faces a sentence of up to five years in prison or a fine of up to 20 lakh rupees.


One of the greatest advances in medical science and technology is organ transplantation. The benefits of this accomplishment, though, might not be accessible to everyone, is in its current form, a cadaveric donation in India which mostly serves the wealthy and only supports a very small proportion of patients who seek it. The impoverished have also been taken advantage of it to an extent. It is a sad fact that despite being in effect for 15 years, the THO Act has not been able to prevent the commercial trade in organs or promote organ donation.

The best course of action in India is to spend money raising awareness about the deceased contribution and passing legislation requiring the donation unless someone opts out. The conservative mindset of society needs to shift, together with strict legislative requirements and their successful implementation, in order to close the enormous gap between the supply and demand of organs.

This article is written by Aditi Jangid, first year law student from Delhi Metropolitan Education (Affiliated to GGSIPU).

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