FROM CONSENT TO PENALTY ON ORGAN TRANSPLANTATION IN INDIA

AUTHOR:  MD PAYAL, SOA NATIONAL INSTITUTE OF LAW, BHUBANESWAR 

Organ transplantation is the relocation of human organs from one person to another human being. It may include vital organs like liver, kidney, pancreas or may be tissue or may be skin etc. The transplantation and donation of organs is carried out by THE TRANSPLANTATION OF HUMAN ORGAN ACT, 1994. This act gives an utterance about types of donors, consent of the donor, types of donation and penalties that should be imposed on the person who violates the rules and restriction mentioned for the transplantation in the act. This Act also defines some of the important words that are often used in the corresponding topic and emphasises the word brain dead and diseased person. This work is all about the consent, the offences that happen in the donation works and how the violator of the rules is liable under the act. Again, this paper includes the suggestion that could help in bracing the act and so that the justice remains fair and there is also the landmark case analysis that will help in understanding the concept smoothly. 

Organ transplantation, Brain dead, Role of consent , Penalties.

According to the Hindu puranas and religious scriptures there is a concept of rebirth of lord Ganesha who was beheaded by his own father lord Shiva. But at the end lord Shiva promised to bring Ganesha back to life and send his followers to bring the head of a first living creature they encountered. They found an elephant and brought its head and lord Shiva replaced it as Ganisha’s head. This story is not history but just mythology. The history of organ transplantation is very short. Organ is made out of cells and tissues to perform special functions like circulation, respiration, digestion and many more. The word ‘Human organs’ is defined under the section 2(h) of the transplantation of human organs Act, 1994. The word ‘transplantation’ is also mentioned under section 2(p) of the said act that defines it as the grafting of any human organ from any living person or deceased person to some other living person for therapeutic purpose. 

The very 1st successful organ transplantation is the kidney transplantation. It was done between David Hume and Joseph Kelly in the year 1954 at the Boston (Peter Brigham Hospital). And the 1st organ transplantation of organs in India was also the transplantation of kidney in the year 1971 on 1st December at Christian medical college Vellore of Tamil Nadu. During the 1960s, the successful transplantations of heart, pancreases, liver had taken place. The transplantation also extended to tissues, corneas, heart valves, skin and bones. 

Here the question arises: why does society need organ transplants! 

We are living in a dynamic world that changes per second. Hence advancement of medical technology is very important for us as it increases the rate of success. It helps in life saving procedures as well as helps to improve the quality of life. This concept also aware people about ethical responsibilities and encourages donation of organs, blood and tissues.

Transplantation procedure is not complex as it sounds, but it includes certain rules and regulations which are mandatory for removing organs from one’s body. The transplantation can be done before death or after death of a donor who voluntarily authorises the removal, storage of his/her organs or tissues or both. The definition of donor is described under the section 2(f) of the Act, and it does not include persons below 18 years. 

Generally, in the organ donation or transplantation case dead means BRAIN DEAD (brain stem dead). The word brain stem dead is also described in the sec 2(d) of the transplantation of human organs Act. Brain stem is a brain part that is located above the back of the neck and connects the brain with the spinal cord. It is fully hidden by the cerebral hemisphere and cerebellum. It contains midbrain, pons and medulla oblongata that controls respiration, heart rate, balance, and a part of the nerve system. This act distinguishes the donor into 2 categories that are 

1. living donor 

2. non living donor 

   
   

Living Donor

Living donor is the person who wants to donate his/her organs or tissues or both to another person during his/her own period of existence. The ‘another person’ may be his near relatives or non-near relatives. Some of the people donate their organs to another person out of affection. A living donor can donate his/her kidney, pancreas, part of his liver, small intestine, a lobe of his/her lungs, uterus and etc. in case of tissues he/she can donate bone, skin, cornea, ligaments etc. The living donor can only donate his/her organs only if he is a major person and this rule is mandatory. 

The consent of the living donor is the main essential of donation which should be voluntarily given by himself. The consent should be free from mislead, fear of consequences, monetary inducement, force or threat. The consent obtained during the intoxication stage is invalid to remove one’s organs. 

According to sec 3(2) of the Act the living donor has to give consent to transfer his/her organs to another person in writing in the presence of two or more witnesses out of which one is his/her near relative. After the death of the donor the organs could only be removed from the dead body with the consent of the person under whose possession the body remains. But if the person has good reasons to believe that the donor has subsequently revoked the authority, he can stop the removal procedure. 

The removal of organs can be done by the authority given by a person who is lawfully in possession of the dead body provided that the dead person did not give his/her consent in any written format, and he/she expressed that they did not have any objection to donate their organs after death. The removal can only be done by the registered medical practitioner. But transplantation of cornea can be done by experienced technician.  

Non-living donor  

Non-living donors refer to the person who is brain dead or had cardiac arrest. If the person before his/her current situation has done the registration for organ donation, then with the permission of the person legally authorised with the body, the removal of the organ from the body can be done. If there is any objection raised by the authorised person then the removal will be stopped, provided that the objection must be in good faith along with good reasons. If the donor is a minor as per the definition section, then the removal can be done with the consent of one of the parents. then the removal can be done with the consent of one of the parents. 

As per the said Act, before removing any organs from a brain-dead person, the board of medical experts must issue a death certificate under the name of the brain-dead person. A registered medical practitioner in the charge of the hospital, a registered specialist nominated by the registered medical practitioner in charge of the hospital, a neurologist and the medical practitioner who treated the braindead person constitute the BOARD OF MEDICAL EXPERTS. The specialist and neurologist must be selected by the medical practitioner who is in charge of the hospital from the panel of names approved by the appropriate authority. 

APPROPRIATE AUTHORITY is discussed under the chapter IV of the Act.  For union territories there are one or more than one appropriate authority appointed by the central government by notification. At the state level the state appoints one or more of its officers as appropriate authority. The corresponding government shall appoint an advisory committee to help the appropriate authority to conduct his/her functions properly. The advisory committee remains in force for 2 years. the central government must deliver the terms & conditions for appointing the advisory committee. 

The appropriate authority has all the power as a civil court from summoning any person to issuing search warrants under the act. 

When a person is dead, and his/her death is suspicious then the judiciary must interfere in that matter. In that case if the person did a registration for organ donation, then no organs can be removed by any one unless the cause of death is cleared. If the body is submitted to any person for cremation or other way of disposal, the authority to remove the organ will not be valid.    

When a dead body is unclaimed by the near relatives of the dead person within 48 hours then the authority to remove any organs from the body can be given by – 

1. The person in charge and management of the hospital or employee of the hospital authorised behalf of him 

2. The person in charge and management of the prison or employee of the prison authorised behalf of him. 

If the person authorised to an unclaimed dead body to give consent to remove the organs has the knowledge that any near relative is likely to claim the body and has not come forward to claim the body within the specified time period, then the consent can be taken from the authorised person. 

The person removing the organs must be a registered medical practitioner and the hospital where the procedure is going to take place must be registered under the Act. If the hospital is not registered under the Act, then it cannot help in removing, storing or transplanting any of the human organs or tissues. The place of the hospital also needs to be registered for the specific purpose and other than that place the transplantation and storage won’t take place. Other than therapeutic propose no organ can be donated by the donor 

Before conducting the transplantation, the medical practitioner must discuss all the effects and side effects to the recipient and the donor. And this is the duty and obligation to the medical practitioner who is going to conduct the transplantation procedure. 

giving authority to remove the organs is the main essential of the Act. So, any person who helps in removing, aiding in removing or storing the organs without authority shall be liable with imprisonment up to 10 years and with fine which may be extended to 20 lakhs. 

If the offender is a registered medical practitioner, then a report under his name will be made by the appropriate authority to the respective state medical council. If he is a first offender his name will be removed from the register for 3 years and if he is a subsequent offender then his name will be removed permanently. Similarly in case of tissue transplantation, if a person renders his services at or to any hospital or associates with a person who removes the tissue without authority can be liable under the imprisonment of 3 years and fine up to 5 lakhs. 

Person involved in organ trafficking will be punishable with imprisonment of 5 years to 10 years and also liable with fine which may extend from 20 lakhs to 1 crore. 

Again, the Act also provides that the punishment will be the imprisonment of 5 years and fine up to 20 lakhs if any contravention of any of the provisions mentioned in the act happens. 

Kuldeep Singh & anr vs. state of Tamil Nadu & ors

In this case there was a patient whose both kidneys were damaged and another person who was not a near relative wanted to donate his one kidney to the patient out of affection. For ‘no objection certification' an application was made at the Devaki hospital Ltd. at Chennai where the treatment was going on. Both persons were from the state of Punjab. 

Here the question was raised as to where the ‘no objection certificate’ should be filed before the appropriate authority of Chennai or Punjab! 

The court observed the case very delightfully and declared that the objective behind the willingness of the donor to donate his/her organ should be in good faith or may be out of affection. The truth of the intention of the donor can be found by the residence of the donor and the recipient. As both were from Punjab so the court decided that to issue a “no objection certificate” the application should be filed before the appropriate committee of Punjab. 

Ordinarily the transplantation procedure is very expensive and onerous for which most of the people could not afford the procedure in the safest way. Sometimes doctors do not prefer the way that will follow the list expenses rather they give advice to the patients to go for treatment that includes high outlay. For example, it can be compared with the scenario of childbirth where doctors generally suggest going for ‘C section’. If this type of scam and tampering in medical conditions remain mentioned in the Act that will be easier for the common people and legal professionals. 

The discussed penalties should be higher than what is mentioned in the Act and the main reason is health and life can’t be negotiated by anyone. When the subject matter refers to anyone’s life then action should be taken immediately. 

The awareness should be spread vastly in the society as some people who are in penury are obstructed by the wealthy from coming forward so that they could speak for themselves properly. In this way the awareness can dismiss the myth about organ donation.  Awareness is the only way to promote the living donation as it includes the simplification of consent, process and safety measures. 

In this day and age, organ trafficking is a challenge to the rule makers and the rule protector. It generally happens by using power or monetary inducement. Sometimes the donor and his/her family suffer a lot from this type of illegal activity. So, the changes in the organ transplantation act are necessary to make simulation steps with our very dynamic society. 

This act again does not specify anything to encourage or support the donor or their family mentally or financially. But by encouraging them it may fire up more donors and successful transplantation. In America there is a central body which is called as ‘donor life America’ that regulates various functions just like NOTTO (National Organ and Tissue Transplant Organisation) in India. But it generously awards the donor for donating their organ after donation whether the transplantation is successful or not. 

In the verdict the organ transplantation is a heroic work which really needs awareness and protection to improve the recipient’s life. It helps in reducing long term health care costs which helps the state in socio economic conditions. The transplantation of human organs Act aims to balance the lifesaving practices along with ethical boundaries. It emphasises the importance of education that leads to the increment of donor registration and drop the myth about organ donation.

In summary, organ transplantation does not limit to saving lives and improving medical technology but also promotes economic stability and social development by creating jobs and increasing workforce productivity. Overall, this organ transplantation can contribute to economic growth, making it a valuable public health investment. 

1. Transplantation of human organs Act, No. 42 of 1994, sec 2 (India). 

2. The transplantation of human organs and tissues Act, No. 42 of 1994, sec 2 (India). 

3. Transplantation of human organs and tissues, Health dept Haryana, https://haryanahealth.gov.in/organ-transplantation-acts/. 

4.  The transplantation of human organs and tissues Act, No. 42 of 1994, sec 3(2)

5.  The transplantation of human organs and tissues act, No. 42 of 1994, chapter IV, sec 13-13(D)

6. Shreya Tandon, The legality of organ donation in India, ipleader, 25 sep 2020.

7. 2005 AIR - JHAR. H. C. R. 1244,

8. Kuldeep Singh & anr vs. state of Tamil Nadu & ors, AIR 2005 SC 2106

9. world health organisation, organ donation and transplantation, WHO (Mar.15, 2023), https://www.who.int/health-topics/transplantation#tab=tab.

10. Shreya Tandon, The legality of organ donation in India, ipleader, 25 sep 2020,  https://blog.ipleaders.in/legality-organ-donation-india. 

11. The transplantation of human organs and tissues Act, no. 42 1994 (India).

12. R.P Kataria & S. K. P Sriniwas, transplantation of human organs and tissues act 1994, 1st edition 2014.