Controversies Surrounding Legislation On Organ Retention: How Can the Existing Problems Be Regulated
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This Blog is written by Divya Bhargava from Indore Institute of Law, Madhya Pradesh. Edited by Ravikiran Shukre.
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INTRODUCTION:
Before discussing the concept of exiting problems and legislation, we need to understand the meaning of ‘organ retention’ it is a procedure where the organs from the body are remove from the particular period for the proper diagnosis and retained. The procedure of organ retention can be used in both positive and negative way. But here, the most important thing is the “consent” from the parties, if there is no consent from the parties then it will be referred as illegal organs. As we already know, that India is considered to be one of the biggest centers for this market. For the protection of people and legislation, the government of India introduced in 1994 known as “Transplantation of Human Organ act”. This act was passed to streamline organ donation and transplantation activities.
Concept of organ retention deals with the transplant of organs from one body to another body. This technique was developed in early twenties making it possible for the person to live and to save a life. Different countries adopted this method in different ways. The organ retention method can be done in both deceased and living to donate their organs but here consent of parties’ matters. Organ retention or preservation has been described as “the supply line for organ transplantation”.
SIGNIFICANCE OF THIS DEVELOPMENT:
In India there are many health development legislations e.g. Dugs and cosmetic act, 1940, The Prevention of Food adulteration act, 1954, the medical and termination act, 1971 etc. there are many laws for the health development legislation but after one serious kidney failure in early 20’s, a new law was enacted in the year 1994 known as “Transfer of Human organs act”. With the advent of advanced medical technology in transplant procedures an end stage organ failure patient11 got a ray of hope to lead a healthy and prolonged life by undergoing organ transplant. [1]
Human body has essential organs like kidney, cornea, lungs that are in pair and makes possible to donate with one of the two during the lifetime and still be able to lead to healthy life.
The organ retention is basically for transplant of organs in need for future or in present. India’s first organ transplant was conducted in 1950’s. [2] The need of organ retention program is to protect the other person from death. The organ retention or preservation was introduced so that, after the death of one person his/her organs can be donated to another person so that another person life can be saved, here the consent plays an important role in transplant. Here, the organ retention plays an important role as transplant.
IMPACT:
Now-a-days everything has both negative and positive sides. Development of organ retention was introduced for the positive benefit, so that the lives of person can be save and for future purposes. Today, people are using this purpose for their own purpose, they are using the retention for own use especially for money. It has come as a boon to trillions of human suffering from ESOF. The impact is that; the people are using organ retention as a black market to earn money. From the recent source, in 2007, police in southern India uncovered an illegal kidney trade involving fishermen whose job has been destroyed by the Indian Ocean tsunami. A massive transplant ring has been uncovered in 2003. [3]
The main problem with the enactment of law is that lack of an appropriate organ. The shortage of related donor kidneys, the lack of deceased donor program and large scale poverty. Most of the families have a diabetic problem or hypertension problem and those families are unwilling to donate due to non-medical reasons desperately needs a kidney and turns to an easy option- an unrelated donor. After the enactment of Act, fewer than 1000 deceased donor transplant have done in India. [4] Looking at the recent scams one wonders whether any law exists. The most frequent complaint made by paid donors is regarding non-payment or under-payment for the donated organ. They rarely complain about the removal of the organ since they are willing sellers. Most of the time following such a complaint, the police arrest the transplant physician and/or surgeon. The hospital administrator, the donor himself, the patient and his relations are allowed to go scot free. If the donor and recipient are also held culpable and punished, illegal transplants could surely be reduced and eliminated over time. [5]
STATUTORY PROVISIONS:
Transplantation of Human Organ and Tissues Act, 1994:
This act deals with the procedure and regulation of the removal, storage and transplantation of human organ for therapeutic pose and for prevention of commercial dealing in human organs and for matters connected therewith or incidental thereto [6]; –
b) It protects the organs from illegal and selling of human organs.
c) This act makes the cash-for-kidney transaction a criminal offence.
d) This act divided into two categories [7]:
- it permits only relatives to donate a kidney to a patient.
- Live donors, who are not relative but are willing to donate their organs to the patient,
e) This act basically talks with the consent of the family, it says that the for the removal of organs, donate organs to another patient, here consent of the family matters a lot.
f) If any organ is taken out from the patient’s body without the consent of families or relatives therefore, the doctor and hospital will be held liable for five years or may be extend to ten thousand rupees [8]
For the removal of organ from the body there should be consent from the patient and also written consent should be done between doctor and patient, so that the families cannot take legal step towards the doctor and hospital.
g) If any unclaimed body is lying in the hospital or prison is not identified by the relatives or families within 48 hrs., authority is given for the removal of human organs by person in case of management or control of hospital or prison. [9]
h) After the removal of organ from the body of any person, the registered medical practitioner shall take steps for the preservation of human of the human organ so removed as may be prescribed [10]
CASE LAW:
Kuldeep Singh v. State of Tamil Nadu
On 1/09/11, a petition was filed by Mrs. Sadhna Bhardwaj for issuance of a No. objection certificate for undergoing a kidney transplant at Remedy Hospital, Kolkata. The petitioner was suffering from End stage renal disease, so the doctors consider him to undergo the kidney transplant. In this case, she also claimed that the wife of petitioner agreed to donate the kidney to her. Later, on representation of the petitioner against rejection of her request not meeting with success. The present petition was filed through the son of the petitioner seeking a mandamus to the respondent to consider the application in accordance with law. On contention of the counsel for the petitioner that the medical condition of the petitioner is precarious, notice of the petition of a short date was issued and the counsels have been heard without the respondent filing a counter affidavit, the opposition of the respondent being purely legal. The respondent has rejected the request of the petitioner for issuance of a NOC for the reason of:
(a) There being no relationship between the petitioner and the prospective donor and (b) There being no proof of association linkage between the petitioner and the prospective donor or their families.
So, the Supreme court held that, it is only the authorization committee which can look into the permitting organ transplantation under the love and affection clause, while answering the petition filed by a kidney donor (not a near relative but out of love and affection consideration) complaining that the authorization process is a wastage of time and would be fatal to a patient.
ANALYSIS:
Organ retention is a procedure where an organ is removed for a particular period of time here; basically the organ retention is done after the death of patient from the family’s consent and also from the patient’s consent who is willing to donate their organs. The organ retention procedure was established for the proper cause in public but some people adapt this procedure as money-earning business. To stop these black marketing, the government should take necessary steps:
1) If anyone doctor is caught by doing any illegal trading, he will be severe punished.
2) Stricter laws should be formed under the legislation i.e. The Transplantation of Human Organs and Tissue Act, 1994 and more penalty should be imposed.
3) In each and every hospital, security cameras should be installed, so that illegal trading should become less in every aspect.
4) More education should be provided to the people regarding the positive sides of organ retention. [11]
5) Compensation should be received to the patient or deceased’s family for violating the rights.
6) The State medical councils should screen the records of hospitals performing organ transplants (especially kidney transplants).
Basically, organ retention and organ trafficking are both different terms, but they go side by side. People use preserved organs for their own use and sells them for money, so somehow organ retention is another type of organ trafficking. But organ retention procedure is introduced so that the people’s lives can be saved and it is a transplant procedure, here the organs are preserved of the deceased’s and with the permission of deceased’s relatives or family.
CONCLUSION:
Organ Retention is another form of organ transplantation; it is one of the biggest achievements in the field of medical field. However, the fruit to this success is not available to all. In India, one can witness that a lack of circumstantial evidence regarding the happening of the crime since are wrapped in secrecy and corruption, as we know that India is the biggest market for the corruption. Organ retention is a procedure where the organs are preserved after the deceased’s death or the patient give their own consent. Without the consent, the doctor cannot preserve the organs, if doctors did, then he will have charged under the punishment and criminal offence.
Therefore, above analysis many ideas were given to stop the organ retention as organ trafficking because these terms are very different but now-a-days, somehow they are treated same. Just to make difference between, the government and people should take some measures steps to maintain the difference between them.
REFERENCES:
[1] Anju Vali Tikoo, Transplantation of Human organs: The Indian Scenario, Vol.No.1, ILI Law Review,147|150| (2017).
[2] Nallusamy S, Shyamalapriya, Balaji, Ranjan, Yogendran. Organ donation – Current Indian scenario. J Pract Cardiovasc Sci 2018; 4:177-9.
[3] Simon Robinson, India’s black market organ scandal (Friday, Feb,.01,2008). http://content.time.com/time/world/article/0,8599,1709006,00.html.
[4] C Prakash, Organ Transplantation Problem in India: Problem and Solution, Vol.21 No.2, NMJI, 59 | 60 (2008).
[5] C Prakash, Organ Transplantation Problem in India: Problem and Solution, Vol.21 No.2, NMJI, 59|60 (2008).
[6] Shreyash Mittal, All about transplantation of Human organs act,1994 (9 July,2018). https://www.latestlaws.com/articles/all-about-transplantation-of-human-organs-act-1994-by-shreyash-mittal/.
[7] 3, The Transplantation of Human organ act 1994.
[8] 18, The Transplantation of Human organs and tissues act 1994.
[9] 5 (1), The Transplantation of Human organs and tissues act 1994.
[10] 7, Preservation of Human Organs, Transplantation of Human organs and tissues act 1994.
[11] Kuldeep Singh V. State of Tamil Nadu [(2005) 11 SCC 122]
[12] How to stop organ trafficking? A critique of the Transplantation of Human Organs Act in India, Eastern Book, Pg. No. 7, Company (Monday, June 21,2021). https://supremecourtcases.com
[14] https://supremecourtcases.com
[15] https://www.mohanfoundation.org/Summary-Of-The-Delhi-High-Court-Judgement.pdf.