Chapter 7: Human Organ Transplantation: Legal and Ethical Aspects

7.1: Introduction

• Transplantation of Human Organs Bill: Provides for the regulation of removal, storage, and transplantation of human organs for therapeutic purposes, and prevention of commercial dealing of human organs and matters connected therewith or incidental thereto.

Two Types of Human Tissues/Organs

1. Regenerative Tissues — human tissues or organs, which, even if removed from their respective places in the anatomy, can r%%ejuvenate or replicate within the body%%.
2. Non-regenerative Tissues — kidney, heart, lung, liver, etc. if removed from the human body %%will not be regenerated%%.
   • As a result, in the donation of such tissues or organs, the donor undoubtedly loses a vital organ in the body, which in some cases may result in permanent partial disablement or may even lead to the donor’s death.

7.2: The Transplantation of Human Organs Act

• The proliferation of the human organ trade for transplantation during the 1970s and 1980s has influenced World Health Organization (WHO) to develop a set of guiding principles on human organ transplantation.

Guiding Principles of Human Transplantation

• Organs may be removed from the bodies of deceased persons for transplantation, if:
  • Consent required by law is obtained, and
  • There is no reason to believe that the deceased person objected to such removal in the absence of formal consent given during the person’s lifetime.
• Organs for transplantation should be removed preferably from the bodies of deceased persons.
• An organ may be removed from the body of an adult living donor for transplantation if the donor gives free consent.
  • The donor should be free of any undue influence and pressure and sufficiently informed to be able to understand and weigh the risks, benefits, and consequences of consent.
• No organ should be removed from the body of a living minor for transplantation. Under national law, exceptions may be made in the case of regenerative tissues.
• The human body and its parts cannot be the subject of commercial transactions.
• Advertising the need for or availability of organs, to offer or seek payment, should be prohibited.
• Physicians and other health professionals are prohibited from engaging in organ transplantation procedures if they have reason to believe that the organs concerned have been the subjects of commercial transactions.
• Any person or facility involved in organ transplantation procedures is prohibited from receiving any payment that exceeds a justifiable fee for the services rendered.

Restrictions of Removal and Transplantation of Human Organs

• Transplantation — the %%grafting of a human organ from any living or deceased person%% to some other living person for therapeutic purposes.

• Human organ — any part of the human body consisting of a %%structured arrangement of tissues%%, which, is wholly removed, cannot be replicated by the body.

• In this regard, Section 9(1) mandates that no human organ removed from the body of a donor before his/her death shall be transplanted into a recipient unless the donor is a near relative of the recipient.

  • A near relative means spouse, son, daughter, father, mother, brother, or sister.
  • Where any donor authorizes the removal of his/her organ after death, the human organ may be removed and transplanted into the body of any recipient.
  • Donors may request that their organs be removed and given to someone else, if they feel an attachment towards the recipient or if they have a close family connection.
  • The Act provides that the committee, after conducting a detailed inquiry, subject to compliance with various conditions, may approve the removal by giving valid reasons.

Authority for the Removal of Human Organs

• A donor may authorize the removal, before his/her death, of any human organ of his/her body for therapeutic purposes.
• A person lawfully in possession of the dead body of the donor may consent to the removal of his/her organs for therapeutic purposes.
• If there is reason to believe that the donor's consent has been revoked, such consent must be obtained by a post mortem examination.
  • The person who has lawful possession of the dead body may request that it be removed.
• Where a human organ is to be removed from the body of a person who has suffered brain stem death, the removal shall be undertaken only when a board of medical experts consisting of the following certifies such death:
  • The registered medical practitioner in charge of the hospital in which brain stem death has occurred.
  • An independent registered medical practitioner, who is a specialist, is to be nominated by the registered medical practitioner in clause, from a panel of names approved by the appropriate authority.
  • A neurologist or a neurosurgeon is to be nominated by the registered medical practitioner specified in the clause, from a panel of names approved by the appropriate authority.
  • The registered medical practitioner treating the person whose brain stem death has occurred.
• In the case of a person who is less than 18 years of age and whose brain stem death takes place, the parents of such person may authorize the removal of any organ.
• In the case of unclaimed bodies, the authority to remove any organ is vested in the hands of a person of such hospital or prison, who is empowered by the management in this regard.
• In the case of a dead body that has been sent for postmortem examination, the person competent may authorize, the removal of organs for therapeutic purposes, subject to formalities as notified by the State Government.

Regulations of Hospitals

• From the date of the commencement of the Act:
  • No hospital, unless registered under this Act, shall conduct, associate with, or help in, the removal, storage, or transplantation of any human organ.
  • No medical practitioner or any other person shall conduct, or cause to be conducted, or aid in conducting by himself or through any other person, any activity relating to the removal, storage, or transplantation of any human organ at a place other than a place registered under this Act.
  • No place including a registered hospital shall be used by any person for the removal, storage, or transplantation of any human organ, except, for therapeutic purposes.