Organ Donation Laws: A Requisite in India

Organ donation is a legal procedure by which a person can give their organs to be transplanted and used for saving the life of another in need. It is carried out either after the person is dead, through the assent of the next of kin, or consent of the donor. Hearts, kidneys, pancreas, liver, lungs, intestines, bone marrow, bones, corneas, and skin are common organs and tissues that are transplants.

Organ transplant is the surgical implantation of an organ or a part of an organ in the body of someone in need. In contrast, organ donation is just a process where the person authorises and agrees to donate an organ. However, an organ transplant depends on the accessibility and availability of human organs.

The first organ donor was Ronald Lee Herrick in 1954 when he had donated his kidney to his identical twin brother. Joseph Murray, the lead doctor, who conducted the operation, won a Nobel Prize in 1990 for advancing organ transplantation. In 2015, a newborn baby became an organ donor after living for only 100 minutes. The purpose of legislation governing organ donation is to curb the practice of illegal organ trade and transplantation.

Countries like China, Iran, Spain, Israel, United States, Brazil, Argentina, Chile, Canada, Colombia, Europe, France, Japan, New Zealand, Sri Lanka, India, and the United Kingdom have various organ donation laws. For instance, until 2014, China had authorised harvesting organs from executed prisoners without their family's assent. However, today the practice has been banned. In Iran, it is legal to buy a kidney. A person in need of a kidney is referred to the Dialysis and Transplant Patients Association, which matches them with a potential donor. Apart from this, the donors are extended health coverage for at least a year and discounted rates at government hospitals for years after. The government also pays all hospital expenses, and anyone under the age of 35 can donate.

In Israel, the organ donor law was established in 2008 and fully implemented in 2010. It was developed as a response to the three significant challenges to organ procurement and transplantation in Israel:

  1. Confusion regarding the determination of death.

  2. Organ trafficking and unethical or illegal transplant tourism.

  3. The critical dearth of transplantable organs.

In Singapore, there is opt-out and opt-in system for donating organs. The organ donation laws in Singapore are governed by two acts, namely, the Human Organ Transplant Act and the Medical (Therapy, Education and Research) Act. The Human Organ Transplant Act or HOTA automatically enables the authorities to remove an organ from a deceased Singaporean or a permanent resident who has expired in a hospital. As per the legal definition, brain death constitutes the absence or discontinuance of all neurological functions. Therefore, under HOTA, an organ can be removed only after brain death has been certified.

Furthermore, France has made organ donation mandatory. The new 'presumed consent' law assumes that the deceased person agrees to have their organs donated, even if the individual's immediate family is against it.

In India, organ donation is regulated by the Transplantation of Human Organs and Tissues Act, 1994. The law allows both deceased and living donors to donate their organs. It also identifies brain death as a form of death. The National Organ and Tissue Transplant Organisation functions as the apex body for procurement, allotment, and distribution of organs in the country. Organ donors can be living or dead. Living donors can donate one of their kidneys, a portion of the pancreas or a part of their liver. Such donors must be over 18 years of age and are limited to donating only to their immediate blood relatives or, in some exceptional cases, out of affection and attachment towards the recipient. In the case of deceased donors, they may donate six organs, like kidneys, liver, heart, lungs, pancreas, and intestine. Organs and tissues from a person declared legally dead can be donated after consent from the family.

However, the lack of awareness has resulted in an improper implementation of the organ donation laws in India. As a result, there is a considerably low match in finding a suitable organ to be transplanted since the data is neither managed nor regulated efficiently. The law prescribes the appointment and institutionalisation of structured and systematic authorisation committees; for proper surveillance to be legitimised in every state. However, there is a lack of such authorities in most states. Moreover, in states like Tamil Nadu and Kerala, inadequate data collection makes the situation worse.

The slit between the demand and supply for organs has broadened over the years. It has resulted in many patients travelling to countries like India, Iran, China, Pakistan, Philippines, Brazil, Turkey, Moldova, Ukraine, Russia, Bulgaria, and Romania, for transplant with a weak regulatory mechanism.

Organ Donation: Is it Ethical?

The ethicality of organ donation and the opt-in and opt-out system has become a topic of debate in modern times. Under an opt-in system, the public can register their interest in becoming a donor. It can be implemented as a flexible system, where relatives can oppose donation even when the deceased has opted in. Alternatively, it can be employed as a complex system in which the deceased supersede any wishes of the relatives. An opt-out system is based on presumed consent, where everyone is an organ donor unless they explicitly refuse. It can also be divided depending on whether family consultation is sought. Even though both systems have their benefits, it is essential to recognise the possible ethical implications of each.

At face value, the opt-in system, currently practised in the majority of the UK, seems to give the public more explicit consent to whether they want to donate their organs after death. Therefore, providing them with a greater sense of control. In addition, it protects people who do not want to donate from donating based on presumption. In December 2015, Wales introduced this system and people over the age of 18 are now deemed to have consented to organ donation unless they have explicitly opted out.

It suggests that not only has the opt-out system had an almost immediate positive impact on rates of organ donors, but also that there are benefits that come with encouraging families to speak about wishes surrounding donation before the death of a loved one.

Consequences of Legalising Compulsory Organ Donation:

➔ It would increase the pool of donors, and the lives of many people, waiting for a transplant would be saved.

➔ Automatic organ donation after death would speed up the process of transplant. As the doctors would not need to verify the consent status of potential donors, this would, again, contribute to saving more lives.

➔ It would help reduce the issue of illegal organ trading.

➔ Organ donation does not cost anything to the family of the donor.

➔ This system would also increase the number of donations for research purposes, accelerating the finding of cures for various diseases.


It is a sad reality that even after 15 years of introducing the Transplantation of Human Organs Act in India, it has failed to limit the commercial and illegal trade of organs and the ability to encourage organ donation. Moreover, the concept of pledging for organ donation after death is still taboo, and people refrain from discussing it, citing their religious beliefs. Consequently, the donation rate is exceedingly tiny. Therefore, there is a severe need to explore this option to increase the organ donation rate and curb illegal trade in and of organs.

In addition, India must invest in spreading awareness about deceased organ donation and enacting a legal provision to make it mandatory unless a person withdraws from it. Along with stringent legal provisions and effective implementation, society's conservative mindset needs to change to fill the wide gap between the demand and supply of organs. The demand for organs is significantly greater than the number of donors worldwide. For example, statistics indicate that just 6,000 kidneys are obtained in India, compared to an estimated annual demand for 2,00,000 kidneys. Similarly, the annual average demand for hearts is 50,000, although as few as 15 are available.

Due to organ donation, many donor families gain comfort and consolation because they realise that their loved one has helped save lives. Moreover, up to 8 lives can be saved by a single donor. Organ donation has created unity between the donor's families and the beneficiaries in society and around the globe. Donating organs may mean the removal of others' depression and pain. Organ donation also eliminates the reliance on expensive routine treatments. Therefore, the taboo surrounding organ donation must end, and the initiative must be embraced.











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