Organ Transplantation: the Scheme of the Act

In one line

A transplant takes something irreplaceable out of one person and puts it into another, and the law's whole task is to be sure the first person agreed and was not paid.

In the wording a student can write in an exam: the Transplantation of Human Organs and Tissues Act 1994 regulates the removal, storage and transplantation of human organs and tissues for therapeutic purposes; it is built on three pillars, an authority for removal that must exist in every case, a restriction confining living donation to near relatives except where the Authorisation Committee approves, and a prohibition on commercial dealing enforced by the offences in the later sections; and it required, as a precondition of the whole scheme, that Indian law adopt a definition of brain-stem death.

Why the law has this at all

Transplantation created three problems simultaneously, and no earlier law answered any of them.

When is a person dead? A heart that stops can now be restarted, and a body whose brain has irreversibly ceased to function can be maintained. Organs for transplant must be taken while they are perfused, which means the moment of death has to be defined by law rather than left to observation. Section 2(d) does it, and it is taken in [Brain Stem Death and the Law].

Who may agree, and to what? The donor may be dead and unable to agree, alive and under pressure from a family, or a person who cannot consent at all. The Act answers each situation separately in sections 3 to 9.

What stops a market? An organ is scarce, valuable and located in poor people. Left to contract, transplantation becomes a trade in the bodies of those with no other asset, which is why the Act's most severe provisions are its prohibitions on commercial dealing.

Sections 1 and 2: application and definitions

Section 1 gives the short title, application and commencement. Section 25 repeals the earlier law and saves what was done under it.

Section 2 contains the definitions, and four matter.

• Section 2(d), brain-stem death: the stage at which all functions of the brain-stem have permanently and irreversibly ceased, and is so certified under section 3(6).
• Section 2(e), deceased person: a person in whom permanent disappearance of all evidence of life occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time after live birth has taken place.
• Near relative, which is the category that controls living donation under section 9.
• Therapeutic purposes, which is the only permitted purpose of removal.

Section 2(e) is worth pausing on: Indian law recognises two deaths, the cardio-pulmonary and the brain-stem, and the second exists because transplantation required it.