Human Organ Transplant Act

A study on the Amendments to the Transplantation of Human Organs Act, 1994.

1. The Parliament had enacted 'The Transplantation of Human Organs Act' in 1994(TOHA). It aimed at regulating the removal, storage and transplantation of humanorgans for therapeutic purposes and to prevent commercial dealings in human organs.TOHA has since been adopted by all States except Andhra Pradesh and Jammu &Kashmir, which have their own legislations in this regard. However, in spite of thislegislation being in force, there have been numerous instances of organized humanorgan trading rackets. These cases highlighted the loopholes in the TOHA that werebeing misused for such thriving business of illegal commercial transactions in humanorgans. The ultimate sufferer in all such cases was the economically weaker section ofthe society. Thus, on the one hand, TOHA had not been able to curb commercialtransactions in human organs; on the other hand, it resulted in procedural delays ingenuine cases of organ donation.

2. The Delhi High Court considered the matter and formed a committee to suggest thenecessary amendments to the act. The Government introduced The Transplantation ofHuman Organs (Amendment) Bill, 2009 in Lok Sabha on 18.12.2009 (Amending Act).The Bill was referred for consideration by the Parliamentary Standing Committeeon Health and Family Welfare. The Committee after wide considerations from all stakeholders presented its report on 04.08.2010. The Bill was passed on 12.08.2011.

3. The following are the main features of the Amending Act:

1. The Act regulated the transplantation of the human organs. The Amending Act hasprovided a definition of 'tissue' and after amendment of the Act, it also regulates thetransplantation of 'tissues' in the human body.
2. The definition of "near relative", who can make a live donation to their relation, hasbeen expanded and now includes the grand-father, grand-mother, grand-son andgrand-daughter also.
3.  Significantly, 'Swap Donations' have been allowed. Thus, if in the family of a patient-A,a relative is ready for a live donation: and similarly, in the family of a patient-B, arelative in his family is ready for a live donation: but the blood group etc. do not match,then in such case, the law now permits swap donations. This means that in asimultaneous operation, the relatives of A and B can donate respectively to the patientof the other family.
4. It has been made mandatory for the Intensive Care Unit or Treating Medical Staff torequest relatives of brain-dead patients for organ donation and to record the responseto the request.
5. The Act now permits the enucleating of corneas by a trained technician.
6.  The Amended Act has appropriate provisions to regulate the transplantation of organsfor foreign nationals and to prevent the exploitation of minors.
7.  The Act has provided for:
   a. The establishment of a 'National Human Organs and Tissues Removal and StorageNetwork'.
   b. The development and maintenance of a 'National Registry Of The Recipients OfHuman Organs Transplants'.
   c. The registration of non-governmental organizations working in the field of organretrieval, banking and transplantation.
8. The Act has made it mandatory for all hospitals registered for organ retrieval andtransplantation to appoint a "transplant coordinator". He would be a trained person.His responsibility shall include advising and persuading the relatives of a brain-deadperson to donate the patient's organs for transplantation.