Organ Transplantation-Legal,Social and Ethical issues

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Author : k.jayshri
Published on : April 05, 2011

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Ms. Jayshri P. Khandare Asst. Prof. in Bharati Vidyapeet's deemed University New Law College, Pune-38. India

Organ Transplantation
Legal, Social And Ethical Issues

“Organ transplantation is an issue that must be dealt with sensitivity. Orienting society to accepting the ‘value of life after death' will go a long way in strengthening transplantation as medical treatment. - Usha Raman

We believe that the God is creator of the world and also human beings are the creation of God. Life and death thus resume being into the hands of God. This was the belief up till now. Time has changed with the advancement of science; technology and advancement in medical science. The mankind is progressing with rapid pace. Preservation and protecting the life has become the concern of medical fraternity.

When person dies? The answer came as when the heart stops or brain stops functioning. Heart failure though it is a deceased can be cured by heart transplantation. This is the extent to which we have reached.

Life is a dynamic process. It starts from birth and ends with the death of the individuals. In between come different stages of life with different diseases and its problems. The body is the site of increasing disputes relating to the collection and distribution of human tissue and organs. An organ transplant is a surgical operation where a failing or damaged organ in the human body is removed and replaced with a new one. The kidney is an example of an organ. Organ transplantation done to replace the recipient’s damaged organ with the working organ of the donor so that the recipient could function normally. Organ transplantation has been part of medical technology for over forty years, beginning in the 1950s with the first consistent successes in kidney transplantation. Organ transplantation is not some sort of experimental new science. Success rates for such surgeries are as high as; and for many diseases, a transplant is the standard method of treatment. In developed countries legislation are very clear and precise in dealing with problem of organ transplantation than the India.

The major reasons for poor performance of Organ Transplant program is lack of awareness amongst public which has generally contributed for poor donor pool, but also lack of awareness, positive attitude and motivation amongst medical professionals.

“Don't take your Organs to Heaven for God Knows they are needed here”

The Organ transplantation is boon to medical industries it has helped in saving the lives of those who would have died otherwise. The Transplantation of Human Organs Act 1994 is one and only legislation regulating organ transplantation but still due to lack of implementation of policies and ignorance of government in this area giving rise to lots of problem.

The ethics of transplantation can be expressed in three requirements:

1. Medical integrity: Patients and the public must be able to trust their doctors not to sacrifice the interest of one to that of another. Individual may make that sacrifice, but not their doctors.
2. Scientific validity: The basic biology and technology must be sufficiently assured to offer a probability of beneficial outcome, case by case.

3. Consent: Consent based upon information adequately presented, weighted and understood, and unforced.

There are certain ethical principles evolved to suggest that transplantation would be within the bounds of ethics if certain criteria are fulfilled, in instances of living donor transplantation. These are:

1. The removal of the tissue or organ does not impair the health or functional integrity of the donor.

2. The benefits expected to be given to the recipient bear an acceptable proportion to the harm likely to the donor.

3. The donation should be altruistic and is given without any coercion or any other form of external pressure.

4. The donor must be fully informed of the nature of the procedure and the possible even if rare complications. This entails the need for follow-up of the donor’s health in the future.

5. The views of close relatives such as the spouse or adult children are taken into account.

6. There must be no element of commercialization or exploitation in the donation.

The practice of medicine is largely unregulated in India. Medical councils and organizations have played a passive role on ethical issues. They have failed to make their stand public or take action even in obvious malpractice. Although the press has been publishing explicit details on rackets in kidney transplantation in various cities no medical body has thought it fit to even conduct an investigation into them.

Distributive justice theory states that there is not one “right” way to distribute organs, but rather many ways a person could justify giving an organ to one particular individual over someone else, to each person an equal share, to each person according to need, to each person according to effort, to each person according to contribution, to each person according to merit, to each person according to free-market exchanges.

One distributive justice criteria is equal access. Organs allocated according to equal access criteria are distributed to patients based on objective factors aimed to limit bias and unfair distribution. Equal access supporters believe that organ transplantation is a valuable medical procedure and worth offering to those who need it. To encourage equality in organ transplantation, the equal access theory encourages a distribution process for transplantable organs that is free of biases based on race, sex, income level and geographic distance from the organ being punished for offenses against society.

The primary ethical dilemmas surrounding organ transplantation arise from the shortage of available organs. “On average, 17 patients die every day while awaiting an organ one person every 85 minutes. The number of donated organs has stayed fairly constant over the last few years while the number of people needing organs continues to increase.

The kidney trade is a global phenomenon; it is present in both the developing and the developed world. Since the introduction of the immuno-suppressant drug Cyclosporine in the early 1980s, organ transplantation has become a relatively safe operation. More and more patients suffering from End Stage Renal Disease opt for kidney transplants instead of remaining on dialysis. The result in many parts of the world is, the demand for kidneys far outweighs the supply. Brokers have stepped in, offering kidneys for sale to cover the deficit.

Two central issues related to the trade in organs need to be addressed: the effectiveness in implementing the current law and the financial compulsions that make people donate their organs

Transplantation of organs from one human being to another has thrown up complex religious and moral questions. If a heart is removed from a cadaver, does it mean that the latter is now devoid of a ‘soul’? Will removal of organs in any way affect the process of ‘rebirth’ or resurrection?

Hindu and Vedic scholars accept the concept of brain death. The concept of giving or daan is ingrained in Hindu thought. Pursuant to the Organ Transplantation Act, in India consent is a major factor when you are talking about organ transplantation. Organs can only be procured willfully, not forcefully. The donor has to directly agree for transplantation in order for the organs to be removed.

The abuse, fraud and coercion of paid kidney donors are also frequently reported. In newspaper articles have reported the deaths of patients who went abroad for overseas commercial transplants; these reports have raised serious concerns about the consequences of the international organ trade, both for recipients and donors.

Many of these studies, nonetheless, report a heightened frequency of medical complications, including the transmission of HIV and the hepatitis B and C viruses. Moreover, one study from the United Kingdom reports that patients who had been suspended from the local transplant list for medical reasons were operated on abroad. These factors seem to indicate the existence of substandard medical practices. Given the desperate desire of the patients to undergo organ transplantation, their risk of being exploited should not be underestimated.

If we consider the experience of other forms of trafficking, an emphasis focusing purely on more punitive measures against organ trafficking may merely distort the issue. Whilst it is important for laws against trafficking to be enacted and enforced against all who participate in organ trafficking (excluding the seller themselves), this is only one way of addressing the problem. We need to be realistic about the effect the crime control approach has, and how to balance this with measures to protect the human rights of victims, in this case kidney sellers who are impoverished and vulnerable. Measures to be taken in this regard should include ensuring access to information for potential sellers and those who have sold kidneys, counseling pre- and post-transplantation and ensuring access to health care and legal services.

Several social scientific studies described the perceived health and economic status effects of kidney donation on paid donors in certain countries. This research shows that the underlying motivation of most paid kidney donors is poverty, and that lasting economic benefit after donation is limited or even negative because of the limited employability of such patients and the perceived deterioration of their health. Results from other more qualitative research are consistent with these quantitative surveys in other countries. Paid kidney donation is also associated with depression, regret and discrimination. Paid kidney donors do not receive follow-up care, due to financial and other reasons.

There are so many issues arise in Organ transplantation, to stop all those things just like, illegal organ transplant, illegal trafficking of organ Indian Government has come up with The Human Organs Transplant Act, 1994 has laid down certain rules and regulations that are to be follsowed while conducting organ transplant.

There is always a demand supply gap for organ transplantation needs. In order to bridge this gap the following suggestions can be made:-

1. India should adopt the Spanish system of “presumed consent” were everyone, post death, is considered a donor unless one has opted out of the process in his life time.

2. The organ that can be easily transplanted from a brain dead person are heart, kidney, eyes, lungs, pancreas, liver, bone marrow, blood vessels, heart valves, middle ear, connective tissues, bones and skins. A single cadaver donor can thus save lives of many terminally ill patients. Though retrieval of organs from brain dead persons was legalised in India in 1948, there are several hurdles before cadaver donation programme in India can be made successful.

3. Awareness should be increased about the benefits of organ donations through the means of mass communication and superstitions among people should be fought by the way of religious injunctions.

4. The government could even consider giving incentives to the donors which could be in the form of health insurance for the donor and his family. The practice has been adopted in several countries. This will help a great deal in putting a check on the trade of illegal organs which is a result of the widespread poverty in the country.

Although organ transplantation helps human beings but there are other issues involved in it. One of them is the cost of treatment. It is always possible for rich to take advantages of this miracle of medical science because they can effort it because the donors are always poor but it is not possible for poor to take advantage of it.

Can we solve this disparity?
Asst. Prof. New Law College, Bharti Vidyapeeth Deemed University, Pune.
Usha Raman, Living after death, The Hindu, p.1, (Jul 25, 2002), available at http/ [Accessed on 03/03/11].
Attributed to both Dan and Barbara Hladio & Thomas Boyadjis, Sr., available at [Accessed on 05/03/2011].
Yosuke Shimazono, The State of the International Organ Trade: A Provisional Picture Based on Integration of available Information, p. 2 (2004) available at [Accessed on 2/03/2011].

Anubhav Srivastava, “Organ Transplantation in India-How to bridge the demand- supply gap” available at [Accessed on 2/03/2011].