SAVING LIVES LEGALLY: AN ASPECT OF ORGAN DONATION

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

Abstract

Organ donation is the donation of organs to the people who are in need of any organ which is transferable from one person to another person to another. It may be vital organs like heart, kidney, liver, lungs. Similarly, tissues like cornea, skin, tendons, bone marrow, blood stem cells, heart valves, veins, musculoskeletal tissues can be transferred from a body to another body. This vlog- ‘saving lives legally: an aspect of organ donation’ enlightens us towards the reason for organ or tissue donation and also calls out for legal donation instead of illicit organ donation of organs. Here we have discussed all the possible ways to encourage the lawful donation which indicates saving lives legally to make both the donor and recipient life elated, the objectives of the new modern act of organ donation and transplantation and how it supports the living donor’s consent.

Introduction

In our Hindu sculptures and Vedas, Life is all about achieving four truths and those are Dharma, Karma, Artha and Moksha. Out of which Dharma insists on the behaviours and moral duties of a person. Organ donation is also recognised by Dharma as ‘ANGA DAN’ which means selfless giving of organs. This dynamic society is also governed by the modern organ donation laws which are designed to protect both people's lives ethically and legally. Between the year 1980 and 1990 the medical technology got its advancement due to research and machinery development. The procedure for transplanting organs like the kidney, liver became so successful that it led to the transplanting of tissues and other vital organs. Although this is a great achievement in medical science, many illegal incidents happened like organ trafficking, misrepresentation of the donation work, organ shortage and all. So, in the year 1994 the act ‘the transplantation of human organ and tissues act, 1994’ was passed by the parliament and it was enforced on 4th February 1995 officially implemented across the country.

The main objectives of the act are

To regulate organ donation and transplantation,
To ensure the donation activities are carried out by ethical and safe manner,
To prevent commercialization and organ trafficking
To legalise the donation from deceased persons.

In the year 2011 an amendment was introduced due to the explosion of population aiming to vanish the unethical practices, to protect the living donor and also focused on the donor’s consent without coercion.

So here the question arises that if saving life is important then, why should it be conducted in a legal way!

The lifesaving laws are introduced to protect the individual’s rights, dignity and bodies without exploitation in case of medical malpractices. These laws ensure that the living donors are neither misrepresented nor motivated by financial gain. This also validates the fair distribution of resources among the public, without judging them from the wealth and social status of the individuals.

Legal framework

The act ‘The Transplantation of Human Organ and Tissues Act,1994’ mainly focuses on the consent of the living donor, the removal of organs from a brain-dead person and also the strict penalties for the violation of the rules and regulations mentioned under the act. This act also defines the words like brainstem dead, deceased person, human organ, minor, tissue bank and transplantation briefly.

In chapter II of this act define as “authority for removal of human organ or tissues or both” where the donor is allowed to give his/her consent for donating its organ by writing an agreement in presence of at least two witnesses. The authority for removing the organs is entrusted with a registered medical practitioner. The donor can give the authority it will be considered as their consent to remove the organ, and the agreement will declare whether the organ will be removed before the death or after the death.

When the donor consents to donate his/her organ after his/her death, prior permission from the person entrusted with the dead body is necessary to take it before removing the organ from the donor. If the person who is entrusted with the dead body objects, then no removal or donation will take place. If the donor is a minor, its parent can give their consent to donate the minor’s organ from the body. But it will only be applicable to a brain dead or dead minor.

When a dead body is not claimed by anyone in 48 hours then the medical authority can remove the organs with Bona Fide intentions and good faith. The consent can be given by any medical authority or constituted committees under this act. Similarly, if the dead person is a prisoner and his/her body is not claimed by any relatives within the stipulated time then the employee of the prison or the person in charge of the management or control of the prison may give the authority for the donation of the organs.

If the organ is removed without authority, then the punishment may be extended to 20 lakhs rupees and the person involved may be liable for imprisonment of 3 years which may extend up to 10 years.

Under section 9 of the act there are restrictions are mentioned which limited the transplantation or donation of the human organs or the tissues or both. This section says that the donor must be a near relative of the recipient to donate his / her organ. If the donor is a near relative but a from foreign nation, then prior approval from the authorisation committee shall be required. In case the donor is not a near relative and wants to donate his/her organ out of affection or attachment then prior permission of the authorisation committee is required.

Again, if the minor is not dead then the donation can’t take place and if done it will amount to punishment. This section states that a mentally ill or insane person is not eligible to donate his/hr organ to another before his/her death. The authorisation committee is prescribed by the central government from time to time.

Generally, the organ bank and tissue bank are regulated by the central government, and the government will be liable for any kind of hampering in its regulation. The central government is also in charge to maintain a national registry of the donors and recipients.

The hospitals where the storage, removal and transplantation of the organs or tissues takes place, must be registered under the act. An application must be made before the appropriate authority appointed by the central government or state government for the registration of the hospital along with prescribed fees. Registration of tissue banks was also added after the amendment act of 2011.

When a person is involved in commercial dealing of organs or abet in preparation of a false document for making the donation successful then he/she will be liable for imprisonment not less than 5 years which may extend up to 10 years and also liable with fine of 20 lakhs which may be extended to one crore. Illegal dealing in human tissues is also punishable under imprisonment of 1-3 years and fine of 5 lakhs to 25 lakhs. This act also strictly mandates its rule on the public and states that whoever violates any rules or provision of the act will be liable for the imprisonment up to 5 years and fine up to 20 lakhs.

Challenges during organ donation

The organ matching and the organ preservation are the logistical challenges faced during organ donation. The organ matching is purely based on the compatibility and the immunity of both the donor and recipient’s bodies. In case of organ preservation there is always a stipulated time limit between which the organ must be preserved. But when the donor and recipient are far apart from each other it will be difficult to protect the patient and the removed organ.

Religious and cultural beliefs are the societal challenges that discourage the organ donation and create a hindrance in practicing the donation procedure. The donation rate is also challenged by the misconception about organ donation due to the lack of awareness. In some cases, this kind of donation is considered as unethical and beyond the religious beliefs.

Organ donation and heath of the donor are the medical issues which created a bar in transferring the organ from one person to another person. When the recipient’s body rejects the transplanted organ due to his/her immune system then it will create a crucial risk on the post-surgery care of the recipient.

Other than these challenges the ethical challenges and legal issues are there which describes the challenges faced on the time of giving or taking consent from the donor. It also includes the lack of standardized laws, penalties and enforcement for illegal organ trade and transplantation ethics.

Treatments towards the challenges

Although the barrier of cultural and religious beliefs can’t be ignored totally, it may be reduced by issuing awareness among the public. The importance of organ donation and its positive impact must be delivered by educational campaigns. Many NGOs are working for this campaigning programme authorised by the state or central government. The myth can be dispelled by using the media and social platforms. Communicating with the public may shift the beliefs in supporting organ donation.

The act mentions harsh punishments on the offenders but it is not enough to compensate the victims of the offences like organ trafficking, misrepresentation as these offences are connected with someone’s life. It will raise a question about the fundamental right of an individual. So, strengthening the enforcement of the regulation of the act with harsher punishment may restrict the illegal organ trade or organ trafficking.

Simplifying the processes for obtaining and giving consent will clear all the doubts regarding a transparent consent. To give their consent for donation the donor must be given by some accessible platform for registration. It will encourage other people to donate their organs.

The legal loopholes can be solved by amending the existing law and regular review to ensure the effectiveness of the act. The government should establish committees to monitor the hospitals registered under the act where the removal or transfer or storing of the organs takes place. These solutions are although temporary but effective in ensuring the protection of the donor as well as the recipient. These measures will create an environment where organ donation will be seen as saving a life.

Conclusion

In spite of the fact that the society is changing and now accepting organ donation highly, the demographic surge increases the rate of misrepresentation and organ trafficking. Ensuring consent and autonomy, preventing organ trafficking, fair allocation of the organs need regulations and laws to protect one’s life and dignity. It restricts the unregulated and unsafe procedure in organ donation. So, considering these ups and downs in the laws and as a responsible citizen of the country, let’s consider the lawful donation as a lifesaving action.