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Organ Transplantation Law: Strengths And Weaknesses

The Transplantation of Human Organs Act (THOA), 1994 was enacted to regulate the removal, storage, and transplantation of human organs for medical purposes. It aims to prevent any commercial activities involving human organs and addresses related matters. The Act came into force w.e.f. 4.2.1995 in certain States and in all Union Territories The law was established to tackle the scarcity of organs for transplantation, prohibit commercial organ trading, and ensure ethical standards in organ transplant procedures.

It underwent amendments in 2011, with the revised title becoming the Transplantation of Human Organs and Tissues Act, 1994. The rules provided by this act were enforced in 2014.This legislation enables organ swapping and expands the donor pool to include grandparents and grandchildren.

The rules regarding this were officially announced in 2014. The Act acknowledges cadaver transplantation, brain stem death, prohibits unrelated donors, allows for the preservation of harvested organs for transplantation purposes, and permits live donors who are immediate family members or have a strong familial bond with the recipient.

Furthermore, it also allows unrelated live donors based on affection or attachment towards the recipient or for any other special reason with authorization from the Approval Committee. The Act establishes regulations for hospitals that conduct the removal, storage, or transplantation of human organs. It creates the Appropriate Authority, which is supported by an Advisory Committee. The Act also requires registered hospitals to appoint a transplant coordinator.

The Act also directs for the setting up of a National Network for coordination of several registered hospitals and maintenance of a data bank of donors and prospective recipients and the Act also provides for punishment for any violation of the Act.

The act defined brain death as a valid form of death and made it illegal to sell organs. This recognition of brain death allowed for the advancement of organ transplant procedures, including kidney transplants, as well as the transplantation of other vital organs such as liver, heart, lungs, and pancreas.

Organ transplantation is a significant milestone in medical science. While there are mentions of organ transplantation in ancient Indian and Chinese medical literature, modern techniques were pioneered by French Surgeon Alexis Carrel in 1902 through animal experiments. The first human kidney transplant took place in 1946, followed by liver transplantation in 1963 and heart transplantation in 1967. Since then, advancements have been made to transplant other vital organs such as lung, pancreas, and intestines.

Issues and Challenges
Organ transplantation is a complex fie�ld filled with numerous challenge�s and issues that greatly impact patients awaiting life�-saving organ transplants. One of the most urgent matte�rs is the overwhelming numbe�r of cases involving organ failure, which is largely influe�nced by lifestyle dise�ases, aging populations, and advancements in diagnostics. This has created an ever-growing demand for organs, exacerbating the existing poor availability of donors. The demand versus supply gap remains a significant challenge, leading to prolonged waiting lists and unfortunate outcomes for patients.

A critical aspect in addressing this issue is the lack of awareness about the concept of Brain Stem Death (BSD), which is essential for potential organ donors. Additionally, there is a shortage of hospitals that can certify BSD cases, hindering the identification of potential donors. Infrastructure deficiencies, especially in government sector institutions, further complicate the process of organ procurement and transplantation.

Another concerning challenge is the lack of awareness and a positive attitude towards organ donation among the general population. This issue is compounded by the potential for organ trading, which not only exploits vulnerable individuals but also undermines the ethical principles of organ transplantation.

The reluctance of some states to adopt the Transplantation of Human Organs (Amendment) Act, 2011, which aimed to streamline organ transplantation procedures, is a regulatory hurdle. Furthermore, the complex logistics surrounding the transportation of donated organs, especially across state borders, remains a logistical challenge. The allocation of deceased donor organs, especially the heart, to foreigners also raises ethical questions.

In addition to these challenges, there are significant gaps in data reporting, especially in terms of online entry by hospitals and states into the National Registry. This hampers the efficient management and allocation of organs. The lack of well-organized networking systems among the National Organ and Tissue Transplant Organization (NOTTO), Regional Organ and Tissue Transplant Organizations (ROTTOs), and State Organ and Tissue Transplant Organizations (SOTTOs) further complicates the coordination of organ transplants. This lack hampers the smooth flow of transplant procedures.

Additionally, the high cost associate�d with transplantation, especially for those who are� uninsured or financially disadvantaged, create�s disparities in accessing life-saving tre�atments. Lastly, the maintenance of high standards in transplantation, encompassing both medical and ethical aspects, is an ongoing challenge that demands vigilant oversight and regulation. Addressing these multifaceted issues is essential to ensuring equitable access to organ transplantation and saving countless lives in need of this critical medical intervention.

Only a few hospitals have everything needed for successful transplants, like skilled doctors and transplant coordinators, and the right equipment. Some places don't have ventilators to support brain-dead patients. Transporting donated organs can be tough because there aren't enough facilities. Very few private hospitals have the proper setup for organ transplants. Public hospitals, where most cases happen, face even more challenges. Additionally, healthcare� professionals have acknowledge�d that there is a lack of training among intensive�-care unit staff regarding the care� of brain-dead patients. This knowledge� gap exists because brain de�ath is not typically covered in their formal e�ducation.

The "reasonable period" to be followed by Hospitals and Authorization Committee for holding interviews and conveying the decisions to the applicants seeking organ transplantation under Transplantation of Human Organs and Tissues Rules, 2014 is not clear and due to inordinate delay by the Hospitals and the Authorization Committee the process of transplantation is being delayed thereby increasing the sufferings of the patients.

Reasons for shortage of organs for transplantation
The shortage� of organs available for transplantation is a multifaceted issue� influenced by seve�ral factors. Some key reasons for this shortage� include:
  • The availability of potential deceased organ donors is limited. Organ transplantation requires organs from deceased individuals who meet specific criteria, and not all individuals who pass away are suitable donors.
  • Not many people fully understand the significance of organ donation or may have misconceptions surrounding the process. This lack of awareness can result in missed opportunities for potential donors.
  • Certain individuals and communities have religious or cultural beliefs that discourage or forbid organ donation, resulting in a smaller number of potential donors.
  • Even if someone has registered as an organ donor, they still need family consent. This part can be hard to get because family members may not know their loved one's wishes or are too emotionally hurt.
  • Not everyone that passes away is qualified to donate organs. Some factors that play into this are the cause of death, medical history, and condition of the organ itself.
  • Worldwide organ trafficking and illegal trade are serious concerns. The attempts made to combat this issue can reduce the number of available organs.
  • Taking care of organs from preservation to transportation is a complex task that needs to be done quickly. Delays or problems in this process can result in the organs becoming useless for a transplant.
  • The policies put in place to distribute organs fairly can also be a source of disagreement. These policies decide who receives what organ and when.
  • Healthcare facilities might not have enough resources, personnel, or infrastructure needed to identify donors, manage them, and eventually give them out.
  • The availability of organs can be impacted by ethical issues surrounding consent, payment incentives for donors, and policies that decide who gets what organ.
  • As time goes on and the population gets older, there will be more cases where people need an organ transplant due to old age-related failures. To address the organ shortage and improve transplantation, we must take a comprehensive approach.
  • This involves educating the public, enhancing our healthcare system, addressing legal and ethical concerns, and finding ways to increase the number of organ donors. Encouraging individuals to become donors, improving procurement and distribution processes, and combating organ trafficking are key strategies that can alleviate this shortage.

Global Scenario
In the Western world, cadaveric donors have been a major source of organs and tissues. Organs from such donors need to be quickly transplanted due to their rapid deterioration without blood supply. The concept of brain stem death allows for organ removal from "beating heart" donors.

Globally, organ demand is surpassing supply. For instance, the UK and the US face organ shortages. Reasons include reluctance to donate, lack of inquiries from physicians to families about donation wishes, and unawareness of a deceased person's desire to donate.

Different legal frameworks govern organ donation worldwide. The UK, European countries like Germany, Italy, as well as Canada, Australia, and New Zealand follow 'opting-in' systems, where lawful body possessors can authorize organ removal. Many countries like Austria, Belgium, and Singapore adopt 'opt-out' or 'presumed consent' systems, assuming consent unless stated otherwise. The US implements 'required request' laws, mandating hospitals to inquire about donation from potential donors' next-of-kin.

The World Health Organization (WHO) now recognizes organ transplantation as an established therapy. In 1968, a Harvard Medical School committee proposed brain activity-based death criteria. The UK's Royal College published 'Brain Death' guidelines in 1976. Most countries, including India in 1994, define death as brain stem activity cessation, permitting organ removal.

Indian Scenario
India's 1994 Transplantation of Human Organs Act aligns with WHO guidelines, prohibiting organ commerce and regulating removal, storage, and transplantation. It establishes brain death criteria, prevents commercialization, and designates specific relatives as donors without government consent.

The Act bans donor-recipient money exchange. Unrelated donors need court-affirmed affection and tests before transplantation, verified by the Authorization Committee. Money exchange is illegal for both. Stringent laws prevent organ sales, barring foreigners from local donors. THAO allows live transplants among relatives, spouses, and those donating from affection. State committees oversee unrelated transplants. Hospitals must register and be monitored for compliance.

Despite regulations, India faces challenges in program implementation due to lax medical regulation. Medical councils and organizations are passive on ethical issues and reluctant to take action against malpractice. Media reports on kidney transplantation scams have not prompted investigations by medical bodies.

State medical councils possess investigative powers but seldom use them. Complaints lodged with these councils are often ignored. With an illiterate population, such inaction fosters a conducive environment for illegal activities.

Diagnosing brain death occurs in ICUs with facilities to sustain other organ systems, often in big metropolitan hospitals. These ICUs are strained, understaffed, lack central structure, and have historically given low priority to brain dead patients. Shifting to treating these patients as critically ill donors requires attitude shift and may burden staff further.

Consent gathering is a challenge due to hesitant relatives and unmotivated doctors. Some patients lack attending relatives during brain death diagnosis. Amid growing monetary and political influences on medicine, unethical practices in transplantation could thrive in a profit-driven private sector.

Health budget allocation is low, but resources for advanced medicine need not hinder primary care balance. Affordable cadaveric transplant programs could offer life to those with end-stage diseases. Previous organ transplants benefited only the wealthy who could afford treatment abroad. Making transplants accessible in public institutions benefits the average citizen.

Surveys indicate willingness to donate eyes (72%), but solid organ donation consideration is lower (less than 50%). Many are unfamiliar with the concept of brain death. An audit of 159 brain death cases showed 19% of relatives donated their loved ones' organs.

Over the years, many hospitals across India undertook cadaver transplants, with Chennai leading. However, most lacked motivated medical or social workers skilled in handling brain death situations. If donors aren't first relatives, government authorization committee approval is required in each state.

India faces a significant number of fatal road accidents annually, leading to a potential source of organ donors. However, the current law allows unrelated individuals to donate organs by claiming an attachment to the recipient, resulting in misuse and exploitation. To address this issue, the law needs revision.

A staggering 200,000 people in India require kidney transplants each year, yet only 4,000 kidneys are donated. This gap has exposed cases like that of "Dr Horror" Amit Kumar who was accused of running an illegal kidney racket in Gurgaon. Such incidents raise concerns about the effectiveness of the Transplantation of Human Organs Act, 1994.

In fact, on January 24th, 2008 an illegal kidney transplant operation was uncovered in Gurgaon where vulnerable individuals were compelled to provide their kidneys for clients. First, they were lured to the clinic on the pretext of job opportunities. They were instead asked for donating their kidneys for the fee of Rs 30,000 and all those who resisted this were drugged against their will and subsequently operated upon. According to the Gurgaon police, the scandal at a local clinic was going on for six to seven years.

Some experts say that getting an organ illegally might be justified in life-and-death situations when saving a life is more important than following the law.

The Indian Society of Nephrology suggests that while the current law is good, making it easier for people to donate organs might lead to unrelated and professional donors, causing problems.

To encourage organ donation, the government plans to offer incentives to donors' families, such as lifelong free medical care and check-ups at the hospital of donation. Additionally, a customized life insurance policy of Rs 2 lakh for three years could be provided, with the recipient paying a one-time premium in case of mortality. Preferential status in the organ transplant waiting list might also be given if the next-of-kin of a brain-dead donor requires a future transplant.

To boost brain death cadaver donation, changes are proposed in the Human Organ Transplantation Act. These include notifying relatives about brain death, making it obligatory for ICU staff to suggest and request organ donation, and enabling post-mortem and organ retrieval surgeries to occur simultaneously to minimize emotional trauma and delays.

The high demand and poor supply of kidneys in the United States has widened over the years. This has resulted in many patients traveling abroad for transplant surgery. Some of the countries that have weak regulatory mechanisms have given in to the market forces and include India, Iran, China, Pakistan, Philippines, Brazil, Turkey, Moldova, Ukraine, Russia, Bulgaria, and Romania.

Appropriate Authority
The oversight of the removal, storage, and transplantation of human organs is entrusted to the Appropriate Authority (AA). To engage in these activities, hospitals must obtain a license from this authority. It's worth noting that the removal of eyes from a deceased donor's body does not fall under the regulation of the AA and can be performed elsewhere without requiring a license.

The AA's powers include the following:
  • Inspecting and granting registration to hospitals for transplant surgeries.
  • Ensuring that hospitals meet the required standards for transplantation.
  • Conducting regular inspections of hospitals to check the quality of transplant procedures and follow-up care for donors and recipients.
  • Suspending or canceling the registrations of hospitals that violate the rules.
  • Investigating complaints of any breaches of the law.
  • The AA issues a hospital license for a period of 5 years at a time and can renew it after that period. Each type of organ transplant requires a separate license from this authority.

Authorization Committee
In India, the Authorization Committee plays a pivotal role in overseeing the complex and sensitive process of organ transplantation. Its multifaceted responsibilities are integral to maintaining the ethical and legal standards in this field. Firstly, the committee diligently verifies the compatibility between organ donors and recipients. This involves a meticulous evaluation of medical and legal aspects to ensure that the transplantation is not only medically justified but also adheres to ethical principles.

Secondly, the committee holds the authority to approve or disapprove transplant cases based on stringent assessments against the Transplantation of Human Organs (THO) Act. This critical function ensures that organ donations are voluntary and not associated with any form of commercial organ trade, which is prohibited by law.

Another vital role of the Authorization Committee is its active involvement in preventing organ trafficking and illegal organ trade. By closely scrutinizing transplant cases, the committee acts as a bulwark against any attempts to exploit vulnerable individuals or engage in illicit organ transplant activities.

Moreover, the committee's responsibility extends to monitoring the compliance of hospitals and healthcare professionals with the regulations related to organ transplantation. This oversight includes rigorous examination of documentation and reports provided by medical institutions to guarantee adherence to legal and ethical guidelines.

The committee also plays a crucial role in protecting vulnerable populations, particularly financially disadvantaged individuals, from being coerced or manipulated into organ donation. It scrutinizes cases involving unrelated donors, implementing measures to prevent any potential abuse or unethical practices.

In addition to these functions, Authorization Committees maintain meticulous records of transplant cases and approvals. This record-keeping is essential for transparency, accountability, and data analysis, enabling continuous improvement in the field of organ transplantation.

Furthermore, some Authorization Committees engage in educational and public awareness activities, promoting the noble cause of deceased organ donation and advocating for ethical transplantation practices among the public and healthcare providers.

Overall, the Authorization Committee serves as a vital regulatory body in India, ensuring that organ transplantation adheres to rigorous legal and ethical standards. Through its vigilance, it upholds the integrity of the process, safeguards the interests of both donors and recipients, and works to combat organ trafficking and exploitation in this critical field of healthcare.

Handling shortage of organs for transplantation
The scarcity of organs available for transplantation presents a global challenge. Thankfully, there are several strategies that can help tackle this issue�:

Encourage public awareness and education about the importance of deceased organ donation. Implement effective organ procurement programs to maximize the number of organs retrieved from deceased donors. Ensure that hospitals have trained staff to identify potential organ donors and approach families for consent.

Promote living organ donation, especially for organs like kidneys and parts of the liver. Provide comprehensive information and support for potential living donors, ensuring their safety and well-being.

Consider organs from older donors or donors with certain medical conditions that may be suitable for transplantation. Ensure thorough evaluation and matching to minimize risks to recipients.

Enhance the efficiency of organ allocation systems to ensure that organs are matched with recipients who will benefit the most. Develop innovative transportation and preservation methods to extend the viability of organs for transplantation.

Implement opt-out or presumed consent systems, where individuals are considered organ donors by default unless they explicitly opt-out. Ensure transparency and respect for individual choices.

Support living donors by providing both financial and emotional assistance, including covering their medical expenses, granting them time off work, and ensuring long term health monitoring.

Invest in research on regenerative medicine and organ engineering to develop lab grown organs for transplantation. Additionally, explore innovative technologies like 3D printing to create custom made organs.

Implement strict laws and regulations to curb illegal organ trafficking and commercialization. Increase international cooperation to combat organ trafficking across borders.

Continuously educate the public about organ donation through campaigns, schools, and community outreach. Share stories of successful transplant recipients and donors to inspire others.

Collaborate with non-governmental organizations (NGOs) and healthcare institutions to boost rates of organ donation. Establish a robust network of transplant centers and organizations to simplify the transplantation process.

Engage religious and community leaders to address concerns and misconceptions about organ donation. Customize educational efforts to respect cultural sensitivities.

To address the shortage of organs for transplantation, it is important for governments to implement and enforce legislation that regulates organ transplantation, promotes ethical practices, and safeguards the rights of both donors and recipients.

This complex issue requires a comprehensive approach that involves engaging the public, improving healthcare systems, considering ethical implications, and advancing medical innovations. Effective resolution of this critical matter necessitates collaboration among governments, healthcare providers, NGOs, and the general public.

Court Judgments on Organ Transplantation:
  • In an important judgment, the Gujarat high court on November 21, 2022 quashed the state government's policy giving preference to residents of Gujarat in transplantation of organs from cadavers under provisions of the Transplantation of Human Organs and Tissues Act, 1994. The court ruled that the state cannot limit the right to health and right to life only for its residents. These rights are available to any person, regardless of their citizenship.
  • The Punjab and Haryana High Court has held that duration of marriage is not a ground to discard the willingness of one of the spouses, to donate kidney in favor of the other spouse, particularly when the case has been verified on all legal parameters.
  • The Delhi High Court has requested the Union Government to provide information about the appropriate timeframe for hospitals and authorization committees to conduct interviews and communicate decisions to applicants seeking organ transplantation under the Transplantation of Human Organs and Tissues Rules, 2014.
  • The Supreme Court has instructed the Union Ministry of Health and Family Welfare to promptly address inconsistencies in rules related to cadaveric organ transplants across different states based on the Transplantation of Human Organs and Tissues Rules, 2014.
  • Kerala High Court has emphasized that District Level Authorization Committees should not create unnecessary obstacles when approving applications for organ transplants. The court referred to their role as "divine."
  • In a case presided over by Justice Vinod S. Bhardwaj at the Punjab High Court (CWP NO.26361 OF 2022), petitions advocating for transplants between individuals who are not closely related were upheld.
  • The Bombay High Court recently ruled in favor of a 55-year-old man from Pune, who wanted to donate one of his kidneys to his sister's husband, despite objections from his estranged wife. The decision was made by a division bench of the Court, which included Justice Neela Gokhale and G.S. Patel. They held that, according to the Transplantation of Human Organs and Tissues Act of 1994, it is not necessary to obtain spousal permission for organ donation.
  • The Kerala High Court recently reiterated that criminal antecedents of an organ donor are not criteria to be considered by the authorization committee for transplantation of human organs. "There is no organ in the human body like a criminal kidney or criminal liver or criminal heart," the Kerala High Court observed. This observation came from the Single Bench of Justice PV Kunhikrishnan while quashing an order issued by the Ernakulam District Level Authorization Committee for Transplantation of Human Organs, rejecting a plea for organ transplantation citing the reason that the donor is involved in multiple criminal cases.
  • As per the law, any person who is aggrieved with the order of the AC is allowed to make an appeal within 30 days of the issue of the order to the State government. In the case of B.L. Nagaraj and others v. Kantha and others, the recipient filed a writ petition with the High Court of Karnataka challenging the decision of the AC to reject an organ donation application from the recipient's sister-in-law. The rejection was based on the premise that close relatives were not eligible as donors.
  • The High Court while allowing the writ petition held:
    "There is no provision in the Act which prohibits the person who is not a 'near relative' by definition, from donating his kidney merely because the 'near relative' has not been considered as donors by the family for kidney transplantation. The Committee has misdirected itself in this regard while refusing permission to the petitioners."

The THOT Act, in place for 25 years, has not effectively stopped the organ trade or increased deceased donation programs to address the growing organ shortage worldwide. High demand for organs has led to their commercialization, particularly in countries with poverty and weak regulations, resulting in criticized transplant tourism.

In India, there's untapped potential for deceased organ donation from fatal accidents. Some hospitals and NGOs have shown it's possible, emphasizing the ethical importance of kidney donation. The concept of brain death isn't widely promoted, leading to unrelated transplants with committee approval.

A few NGOs and hospitals promote deceased donations. Recently, the government introduced Gazette legislation to combat illegal organ donations and address THO Act shortcomings. Much of the THO Act's failure is due to varied interpretations by authorities and hospitals. Organ transplantation should be seen as a medical advancement, not an unethical practice.


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