HISTORY OF ORGAN LAWS
Organ transplantation in India has a shorter history compared to the most developed countries in the world. The kidney transplant was first performed in India in the 1970's. Transplantation activities picked up in the 80's and early 90's but it was mainly restricted to live donor kidney transplants in selected urban areas. Slowly, with new clinics coming up and an increase in the availability of trained staff, kidney transplantation activities increased. However, this led to the famous kidney trade in India in the 80's which caught a wide media coverage. Foreign patients started to flock to India for transplantation from a paid donor.
Considering the ongoing kidney scam in India, in 1991, the Central Government constituted a committee to make a report, which would be going to be the basis of legislation governing organ transplantation all over India. Moreover, it was also done to give a better definition of the term ‘brain death’.
In 1994, The Transplantation of Human Organs Act (THOA) was promulgated by the government of India. Moreover, the Transplantation of Human Organs Rules followed in 1995 and were last amended in 2014, increasing the scope of donation and including tissues for transplantation. The act made commercialization of organs a punishable offence and legalized the concept of brain death in India allowing deceased donation by obtaining organs from brain stem dead person.
INTRODUCTION
An organ donor is any individual who decides to donate his/her organs to another human or to further scientific research after being declared legally dead by a trained medical professional. In our country, there are various law on who can and cannot be a donor. These laws are not just for the benefit of the donee but the donor and their family as well. These laws include characterization who can give with no lawful conventions. The family members who are permitted to give incorporate mother, father, siblings, sisters, child, little girl, and life partner. As of late, in the new Gazette grandparents have been included in the rundown of first family members. The primary family members are required to give verification of their relationship by hereditary testing and additionally by authoritative archives. In case of there being no first family members, the beneficiary and giver are required to look for unique consent from the legislature delegated approval council and show up for a meeting before the advisory group to demonstrate that the thought process of gift is simply out of philanthropy or friendship for the beneficiary.
LAW ADMINISTERING ORGAN DONATION AND TRANSPLANTATION IN INDIA
Organ donation and transplantation comes under the ambit of the primary legislation, The Transplantation of The Human Organs Act, 1944 (THOA). It aims at maintaining proper regulation for removal, storage, and transplantation of organs for the therapeutic process. It’s the key duty of the legislation to prevent transplant commercialism.
The need for such an act was proposed by the states of Maharashtra, Goa, and Himachal Pradesh which was later accepted by all the states excluding Andhra Pradesh and Jammu and Kashmir. Nonetheless, there was no fall in the number of human trafficking and commercial dealing with human organs. Therefore, the urge for the amendment was felt in 2009 to address the discrepancies in the act. In 2011, the amendment was passed by the Parliament of India, and rules for the same were jotted down in 2014.
CRITICAL ANALYSIS OF THAO, 1994 THROUGH CASE LAWS
Organ and tissue donation is a medicinal method that saves and improves lives. Doctors collect organs from a donor and transplant them to someone who is very ill. And tissue donors help transform lives through eye and tissue donations. The vast majority of transplantation organs come from dead donors. Death is a sad occurrence for friends and loved ones. But organ donation gives at least one silver lining chance. By deciding in advance to donate your organs after death, one can save those around them by making this tough decision.
The THO Act aims at prohibiting the illegal trading of human organs and lays down the process of retrieving organs from the dead person, related person, an unrelated person in order to provide opportunity to us to be able to help others. The prima facie intention established by the law for donating organs arises for the near relatives- father, mother, brother, sister, child or a spouse and their relationship shall be proved by either genetic-testing or legal documents. For the cases of an unrelated donor, The Authorization Committee (AC) has been set- up by the government to ensure that the donation of the organ is solely done because of the reason “Affection and Attachment” with the patient and there is no monetary gain which is being provided to the donor under the table. Thus, the aim of the Authorization Committee is to determine whether there exists any commercial object between the donor and patient or not, if there is even the slightest possibility the donation stands prohibited. In the case, Balbir Singh vs. Authorization Committee and Others[1] the context of ‘Near Relative’ was brought up.
The motive of the Act is to prevent trade of organs from a person’s body. The law prescribes punishment for whoever commits the illegal and brutal crime of commercializing the organs, imprisonment ranging between two to seven years would be given along with the imposition of a fine between Rs. 10,000 and Rs. 20,000. Although it did not register much success despite the 2011 amendment alongside the kidney scams reported in the years 2002, 2003 and 2004, it has constantly been on the roll for amendments and improvements.
CHALLENGES REGARDING ORGAN DONATION IN INDIA
1. Demand and Supply Gap: There is a huge gap between the demand and supply of organs.
2. Socio-cultural beliefs: Religious beliefs hinder deceased organ donation. Superstitions prevalent such as being born (rebirth) with a missing organ (that has been donated), being tangled in the life-death-rebirth cycle
3. Lack of awareness: The concept of ‘brain death’ and its legal implications unfamiliar to the majority of the Indian population
4. Infrastructural issue:
Limited facilities for transport of donated organs; no air ambulance facilities
Lack of training for intensive-care unit personnel to maintain brain dead person
Lack of awareness among doctors
Lack of effective transplant coordinators
Not all hospitals in India are equipped to carry out the process of organ transplantation and retrieval.
Out of 301 hospitals equipped to handle the process, only 250 are registered with National Organ and Tissue Transplant organization (NOTTO)
5. Wastage of organs: Organs (especially hearts and lungs) are not used due to lack of suitable recipient. This leads to the wastage of organs.
6. High Cost of transplant surgeries: Unregulated cost of transplant surgeries; cost out of reach of poor people.
7. Regional Variation:
All states in India do not have active organ donation programs. Organ donation rates in North India are abysmally poor.
Further, since health is a state subject, there are issues with the implementation of THOA
There are only 5 Regional Organ and Tissue Transplant Organizations (ROTTO)
8. Negative propaganda by media:
False proclamation of “scandals”; organ rackets
News of improper practices of organ collection breaks public trust and is an impediment to the entire process of organ donation
Organ transplantation helped in saving many lives. In India, ‘The Transplantation of Human Organs Act 1994’ is the only legislation that regulates organ transplantation. But due to the lack of implementation of policies and various loopholes organ transplantation has become a trade flourishing illegally. It impacts society and is unethical, endangering human rights.
9. An unethical act against humanity and society: Illegal organ trade not only jeopardizes the holy cause of saving someone’s life but also endangers the life of another healthy individual. It is a highly unethical act as it leads to:
Medical immorality: Doctors are taught to save people’s lives. This not only violates medical ethics but also breaks trust between doctors and patients. Often doctors lure patients for money through wrong information or by giving half knowledge about the effects of organ transplants on the donor.
Issue of Consent: Consent is a must for any organ donation activity. Donors must know all the implications of donating their body parts. Forceful organ donation without the knowledge of the patient is a crime against humanity and violates the human rights of life. It puts the life of the donor in danger. The donor must be fully informed of the nature of the procedure and the possible complications.
Impact on health: The removal of the tissue or organ may impair the health of the donor. It may impact the patient’s immunity and put his life in danger. Many studies have found an increased threat of medical diseases like the transmission of HIV and the hepatitis B and C viruses associated with illegal organ donations. Donors do not receive follow-up care, due to financial and other reasons which endanger their life.
Economic effects: The money given to the recipient is lesser than he suffers. Sometimes patients are ripped off from their organs without their knowledge and without given any amount of money. Research shows that the underlying motivation of most organ donors is poverty, and economic benefit after the donation is limited or even negative because of the limited employability of such patients and the deterioration of their health.
Human trafficking: There is a gap in demand and supply for organs. This led to human trafficking from neighboring countries and in India for organ donation. Many women, men, and children are kidnapped and trafficked for the trade of organs.
Impact the most socially disadvantaged: Organ donation is mainly done by donors due to economic needs. Mostly poor are the ones who bear the cost of the illegal organ trade. Further, street children, women, and migrants are always at high risk due to this.
Failure of state: Forceful organ trade reflects administrative failure and failure of the state to pull people out of poverty, who trade their organs for money. This reflects the failure of society as a whole.
10. Affects the close ones:
Donating organs sometimes limit the ability of the donor to do heavy work. This impacts the employability of donors impacting the food and economic security of the whole family. Also, the illegal organ trade doesn't involve close relatives such as the spouse or adult children, of whom consent is also important.
Organ removal continues in private transplant centers throughout India, service to foreign patients is ongoing, and victims’ consequences are long-lasting. A rights-based response to HTOR that invokes a universal commitment to prevent, protect, and suppress its continued practice is recommended Although organ transplantation is important to save human lives there are issues involved in it. Organ trade which endangers human rights should be strictly dealt with under by-laws and regulations. Criminals should be captured. Group efforts of government, states, and civil society are necessary.
PUNISHMENT UNDER THE THOA, 1944
As per Section 18 of this Act, any person who is responsible for the removal of a human organ/tissue with the authority of doing so can be punished with imprisonment which can extend to 10 years and with fine which can extend to Rs. 20 lakhs. In case that person is a medical professional, his name will be reported by the AA to the State Medical Council to take appropriate action including removing his name from the register of the council for 3 years for the first offense and if he/she commits an offense subsequently, then remove it permanently.
As per the Section 19, if any person involves himself/herself in the commercial dealing of human organs then such person can be punished with imprisonment for a term not less than 5 years but can extend to 10 years and will also be liable for a fine which will not be less than Rs. 20 lakhs but can extend to Rs. 1 crore.
As per Section 20, If any person violates any other provision of this act, he/she can be punished with imprisonment for a term which can extend to 5 years or with fine which may extend to Rs. 20 lakhs.
CURRENT SCENARIO IN INDIA
To do a diagnosis of a brain death donor, an ICU is required because it has the facilities to sustain the other organ system of the patient. But the problem is, such ICUs are few in number and are mainly located in big metropolitan cities. These are already overburdened, unstaffed and lack a central command structure to function effectively. So, on one side there is a patient who is dying, and on another who is already dead but needs proper attention for successful retrieval of body organs. This situation automatically makes the medical professionals give less priority to the brain-dead patient which can be improved by providing more ICUs and spreading awareness about the need for and importance of proper availability of medical facilities in each and every nook and corner of the country.
Although the Act gives the right to the medical practitioner for the removal of organs for a donation if the body isn’t claimed within forty-eight hours after death by its relatives. But in cases where the patients may lack relatives, or their relatives may not be present when the diagnosis of brain death is carried out, and the relatives of the person are traced after the duration and they object to the act, then they have a right to do so. Moreover, the decision of organ donation is not taken by a single relative and the whole family may need persuasion which results in loss of crucial time but also makes sure that the process of consent is kept in mind and appropriately followed. The act of obtaining consent (informed consent) from relatives is thus primary.
Transplantation is a complex and expensive process and there is no state funding for the same. It has been noted that most of the deceased donation has been taking place in the private sector. Moreover, a large number of donors and recipients are from private hospitals. This is leading to an imbalance regarding accessibility, regardless of their ability to pay, as the majority of the organs are currently going to the rich and the same option is not available to the poor sector of the society.
CONCLUSION
Organ transplantation is one of the biggest achievements in medical science and technology. However, the fruit to this success may not be available to all. Cadaveric donation in India, in its present form, largely benefits the rich and supports a tiny percentage of patients requesting it. It also has led to the exploitation of the poor.
Therefore, though we actively aim to raise donation rates we must not lose sight of this big picture. Many of the ideas and principles in modern transplantation of deceased donors come from the developed West, where both social views and health systems vary from those in India. We, in India, need to build an equal, open and not oppressive framework. This will be a slow and challenging process, which may also entail linking to the bigger battle for an advanced and accessible healthcare system for all.
Concluding the matter, The THO Act despite being already passed 15 years ago wasn’t able to control illegal commerce trade in organ donation nor it helped society in promoting organ donation schemes and their importance. There’s a continuous increase in the gap between the number of patients and organs for donations worldwide. The increasingly high demand for organs made the illegal trading of organs more popular in countries where there’s more of the population is under the poverty line. And talking about India due to the increase in traffic accidents there’s an increase in the need for organs as well. Many hospitals have locked deals with NGO’s for promoting organ donation importance. At the end of the day, people need to analyze and interpret our law and need to make changes accordingly so that organ donation like a serious matter falls in the right hands and people could get benefit from well-established law. Meanwhile Centre and State Government must launch in parity various schemes that promote the idea of brain death and organ donation among people. And could also organize dramas, Nukkad acts etc. so that people could get aware of the importance of the matter and realize it as their social responsibility.
[1] AIR 2004 Delhi 413
Witten By,
Kalpana Nailwal,
Intern, Chanchlani Law World
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