Organs laws in India

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A few months back The Government of India celebrated the 12th Indian Organ Donation Day on 30th November 2021. For organ donation, it is first important to understand Organ Transplants. A transplant is a medical procedure where one person’s dysfunctional organ or tissue is replaced by that of a healthy person, thus restoring its function. In certain cases, despite major advances in medical science, a transplant is the only alternative. Transplants drastically improve the quality of life of the patient and give them another chance to live.

National Organ and Tissue Transplant Organization (NOTTO) is a National level organization set up under the Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India. The National Network division of NOTTO functions as the apex center for coordinating all activities and networking for the procurement and distribution of organs and tissues and maintaining a registry of organs and tissue donation and transplantation in the country.

In India Transplantation of Human Organs Act was passed in 1994. It provides a system to regulate the removal, storage, and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs. Consequently, this act was amended in 2011. In pursuance of the amendment Act 2011, Transplantation of Human Organs and Tissues Rules 2014 have been notified in March 2014.

The law allows both deceased and living donors to donate their organs. It also identifies brain death as a form of death. Living donors must be over 18 years of age and are limited to donating only to their immediate blood relatives or, in some special cases, out of affection and attachment towards the recipient.

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Deceased donors

  • They may donate six life-saving organs: kidneys, liver, heart, lungs, pancreas, and intestine.
  • A uterus transplant is also performed, but it is not regarded as a life-saving organ.
  • Organs and tissues from a person declared legally dead can be donated after consent from the family has been obtained.
  • Brainstem death is also recognized as a form of death in India, as in many other countries.
  • After a natural cardiac death, organs that can be donated are cornea, bone, skin, and blood vessels, whereas after brainstem death about 37 different organs and tissues can be donated, including the above six life-saving organs

Living donors:

They are permitted to donate the following:

  • one of their kidneys
  • portion of pancreas
  • part of the liver

Challenges regarding organ donation in India 

Demand and Supply Gap: The a huge gap between the demand and supply of organs.

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

Lack of awareness: The concept of ‘brain death’ and its legal implications unfamiliar to the majority of the Indian population

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 Organisation (NOTTO)

Wastage of organs:

Organs (especially hearts and lungs) are not used due to lack of suitable recipient. This leads to the wastage of organs.

High Cost of transplant surgeries: Unregulated cost of transplant surgeries; cost out of reach of poor people

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 Organisations (ROTTO)

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.

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. Illegal organ trade 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. Illegal, 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 illegal organ trade.

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 illegal organ business.

Failure of state: Illegal organ trade reflects administrative failure and failure of the state to pull people out of poverty, who are forced for organ donation for money. This reflects the failure of society as a whole.

Affect 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. Illegal 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.

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