“Organ and tissue transplantation started in India in the year 1962. Initially, as the organ transplant was unregulated this lead to the trafficking of human organs and the illegal transplant of human organ and tissue was rampant.”[1] Thus, the act governing the organ and tissue transplantation in humans was passed in the year 1994 which was subsequently amended in the year 2011. Furthermore, new rules for the organ and tissue transplantation also introduce in the year 2014. The act and the rules provide with the provisions which need to be follow in the entire process of transplantation by the people involve in the process like medical practitioners, hospitals, donors as well as recipients of the organs. It also provides for provisions related to removal as well as storage of human organs and tissues.
As in India, all matters to health are govern under state list or by states itself. “The act was initially pass on the request of the states of Maharashtra, Himachal Pradesh, and Goa and afterward was adopt by all states and union territories except for the states of Andhra Pradesh and Jammu & Kashmir.”[2] The act accepted brain death as a form of death and also defined the process and criteria to be followed for brain death certification. “ With the acceptance of brain death, it became possible to not only undertake kidney transplantations but also other transplantations like liver, heart, pancreas.”[3] Although there are various provisions for controlling the rampant activity of organ and tissue transplantation, there are various cases reported daily of illegal transplantation of human organs and tissue in humans.
Talking about the other provisions of the act, the act provides that the donor of the organ must authorize the removal of organs or tissue from his body before his death for therapeutic or medical purposes. Furthermore, the act also allows for, “ the transplantation of the human tissues and organs from the living donors as well as after the death of the person.”[4] Thus, it can be seen that for organs to be removed from the deceased person’s body his authorization is required before his death.
The act also provides for the provisions for the purpose of removal of organs for the deceased bodies in case, “ if there is no authorization before the death or in case of unclaimed bodies in hospitals and prison or the bodies which is sent for the post-mortem or medical examination” under sections 4,5 and 6[5] of the act respectively. The act also provides for the regulations that need to be followed by hospitals. That are involve in conducting the removal, storage of human organs and tissue. And also the hospitals involve in such transplantations need to be register under this act. “The act also defines criteria for regulatory and advisory bodies to monitor to transplantation activity as well as its constitution.”[6]
If the hospitals involve in the process of transplantation of humans organs and tissues; indulge in any of the illegal activities. If the Appropriate Authority receives any complaint. The authority can take suo moto cause and may issue a notice to the hospital. Also can take actions against such hospitals. Furthermore, the act also provides for the punishments to the ones; those who remove the organs without the authority of the person. The act also forbids the commercial dealings of the human organs and tissue, under section 19[7] of the act and also provides punishment for illegal dealings in the organs. “The act also provides the outlines for the manpower and facilities that are needed for registration of hospitals as transplant centers”[8] . Apart from this the act also provides that there should be adequate and skilled manpower for transplantation of human organs.
The Act provides that the central government shall maintain the national registry of the donors and recipients of the organs. The act also provides that the Central government has powers to make rules for this act through the official notification. The act also provides for the rules relating to organ donation to near relatives. In case the donor is not dead. Furthermore, the act also provides that the cost of removal, storage and transplantation of the organs; needs to be borne by the recipient of the organs or NGO or government society. Not by the donor of the organ.
As the organ donation is carry out at a large scale in India. There is rampant and illegal trading of organs. To control illegal trading and also to bring a check on the activities of medical centers and hospitals. Involve in such transplantation there is a need for such an act. Which could control such rampant and illegal practices. Thus, the Transplantation of Humans Organs Act, 1994 tries to bring control and check the transplantation of human organs. Also provides for the provisions to check the illegal trading of organs. The central and state governments should also frame policies regarding the transplantation of organs and improving health conditions.
References:
[1] Sahay M., Transplantation of human organs and tissues Act-Simplified 2018 Indian J Transplant 2018; 12:84-9
(6/6/2020 12.06 pm)
[2] Ibid
[3] Sunil Shroff , Legal and Ethical aspects of Organ donation and transplantation, Indian Journal of Urology , 2009 Jul-Sep 25(3) ; 348-355 (6/6/2020 12.37 pm)
[4] Prasanna Kotamraju, What is the Transplantation of Humans Organs Act, 1994? , Tutorials point, https://www.tutorialspoint.com/what-is-the-transplantation-of-human-organs-act-1994, 24th Dec, 2018 (7/6/2020 11.51 am)
[5] Section 4,5 and 6 , The Transplantation of Humans Organs Act, 1994
[6] Supra Note 4
[7] Section 19 , The Transplantation of Humans Organs Act,1994
[8] Supra Note 4
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