Written By: Saptarshi Dutta | Edited By: Sonia Bhaskar | November 04, 2018 7:33 PM | Home Features

A Case for Presumed Consent For Harvesting Of Organs
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  • The 2014 organ transplant law eases provisions to boost organ donation
  • Many of the act’s sections remain unimplemented across India’s hospitals
  • The difference between demand and supply of organs is severely high

Organ donation in India comes under the ambit of the Transplantation of Human Organs Act, which was introduced in 1994 and amended in 2014. Problems remain aplenty in the organ donation sector, which despite the introduction of the law in 1994 and amendments in 2014 continue to exist. To understand existing problems in India’s organ donation scenario, let us rewind a bit to take a look at the 1994 legislation which tried to regularise the organ donation scenario and by doing so, put a stop to the then existent rampant organ trafficking. The legislation also tried to bring together all of India’s states and make them regulatory authorities so that organ donation could be monitored at a state level.

1994: A Legislation To Address Organ Donation

The Transplantation of Human Organs Bill, 1994 was passed in June 1994, making it the first bill to be passed on the subject of organ donation, in the country. The bill addressed several aspects of organ donation and transplant and attempted to ease the process of organ donation by making the process of donation easier. The bill also wanted to ensure that donation processes were legitimate and people did not have to go for illegal organ trafficking methods for transplants.

Also Read: Expert Blog: Steps To Ensure A Steady Rise In Organ Donation Rate In India 

Some of the salient features of the 1994 bill on organ transplant were:

  • Every state and union territory must set up an Authorisation Committee comprising a special group of medical experts. The committee would be in charge of granting permissions for organ transplantations, as well as maintaining adequate data on availability of organs.
  • Only a registered medical practitioner has the authority to carry out the procedure of surgically removing organs from a deceased’s body.
  • Hospitals must obtain approval from state authorities to become an approved centre where organ donation can take place.
  • A neurosurgeon must be present to declare the brain death of a person before his/her organs are surgically removed for transplant. The Act categorically stated that without a neurosurgeon’s presence, brain death declaration was not permitted.
  • Even if a deceased had not explicitly given consent, a relative in charge could allow organ donation if no immediate family member of the deceased objected to it.

2014: Amendments For Further Improvement

Even 20 years after the legislation to regularise organ donation was passed, numbers remained low. The number of organs donated and organs required all across India were highly imbalanced. Organ trafficking remained a concern as people continued to fall prey to organised trafficking rackets. Considering these two primary problems, amendments were brought into the transplantation act in 2014.

  • To widen the number of hospitals where organ donation and transplant can take place, the 2014 amendments allowed any hospital with intensive care facilities and ventilators to retrieve organs.
  • The mandatory presence of a neurosurgeon to declare brain death was altered in the amended act, allowing any physician or anesthetist approved by the appropriate state authority, can be the member of the board of medical experts for certification of brain death.
  • It was made mandatory for the treating physician to approach the deceased’s family and try to convince them to give a go ahead with donation of the deceased’s organs, if the person had not given prior consent.
  • Unlike the 1994 act which gave no clarity on who would bear the cost of donor maintenance, the amendment clearly states that the cost of donor maintenance, retrieval of organs and tissues, their transportation and preservation, may be borne by the recipient or institution or government or non-government organisation.

Given that despite 20 years of the existence of the act, neither the rates of organ donation reached expected highs, nor organ trafficking could be curbed on a national level. The amendments made some relaxations in certain aspects to make organ donation slightly easier across India. However, even these have not proved to be enough as organ donation rates continue to be low and trafficking is still an issue hampering legal donation processes, said Dr Sanjay Nagral, Joint Secretary, Zonal Transplant Coordination Centre, Maharashtra.

Non- implementation Has Experts Worried 

One of the major reasons why organ donation continues to find low favour among many people is because of low awareness and availability of data on the status of transplant. As per the amendment, a state appointed authority along with an advisory committee is a must in every state, which will monitor the organ donation scenario across hospitals in a state. Most states lack such an authority and in the states it is present, such as Tamil Nadu and Kerala, data collection is not uniform.

The process of organ donation cannot be streamlined unless states have appointed authorities and advisory committees, as stated in the amendment. Since many states are yet to have such committees, people never get to know the status of organ availability, resulting in low donation and transplant rates, said Dr Nagral.

Another major area of concern is the low number of physicians approaching families of deceased and obtaining their consent on organ donation. Dr Arpita Ray Chaudhury, Joint Director of Regional Organ and Tissue Transplant Organisation (ROTTO), West Bengal says that many private hospitals do not maintain any record of whether a deceased’s family had been approached and whether they have categorically stated their reluctance to part with the deceased’s organs.

Though it is mandatory as per rules to approach the family and ask them if they have any problem in giving consent on organ donation, many doctors do not do so. Families remain unaware of how they can donate the organs of a deceased member. While it is important to make people aware about organ donation through campaigns, doctors play an important role in sensitising people. When the amendment asks doctors to play such a role, they should be more active in playing it, said Dr Ray Chaudhury.

The ongoing problem of illegitimate organ trade is a result of years of unmonitored organ transplants taking place and the practice now becoming an untamable matter. But non-implementation of some of the 2014 amendments also plays a contributory role in this, as state governments and hospitals have not adhered to some of the core recommendations in the new amendment.

Regularising organ donation is still at its nascent stages in India, because organ donation is not just a medical issue. Several factors such as economics, role of state governments and role of hospitals are crucial in improving organ donation in India. Government hospitals are still ill-equipped and understaffed in many areas, hence organ donation is something majorly dependent on private hospitals. This also excludes a number of people from becoming aware of the method of donating organs, said Dr Nagral.

It would be wrong to say that there is no silver lining to these dark clouds of organ donation in India. States like Tamil Nadu, Maharashtra and Telangana have done well in ensuring significant number of donations in the past few years. But with overall numbers like 2.2 lakh people wait for kidney transplants annually and only 15,000 receive kidneys – the challenge of organ donation it to make itself count, just got challenging.

Also Read: Lack Of Organ Donation In India: Here Is Why Half A Million People Die Annually In India Due To Unavailability Of Organs