Cadaver transplantation - Medicolegal aspects and role of NGOs
Author(s): Ashok Chanana
Vol. 8, No. 2 (2008-07 - 2008-12)
Ashok Chanana
Associate Professor, Department of Forensic Medicine & Toxicology, Govt. Medical College, Amritsar 143 001
ISSN-0971-720X (Print) • ISSN-0973-5672 (Electronic)
Abstract
Though the transplantation of human organs from donor
to recipient is governed by an Act passed by parliament. The
Act encourages the donor transplantation into the body of
recipient who are near relative. Practically the power of giving
consent for removal of organs for therapeutic purposes vests
with the person who is lawful claimant of dead body. But in
medico legal cadaver (whether identified or otherwise) there is
no attempt for the removal of organs from cadaver on account
of no interest of legal claimant due to medico legal nature of
death where there is always unnecessary fear in the mind of
people of investigating agencies. Here NGOs have a great role
to play which can act as an interface between the legal
claimant of cadaver and investigating agencies, so that the
organs may be removed from cadaver for therapeutic purposes
for public benefit before they get putrefied.
Keywords: Organ transplantation, consent, legal claimant and NGOs.
Introduction and review
The removal and transplantation of human organs is
regulated by The Transplantation of Human Organs Bill which
was passed by Parliament of India in June, 1994 and the
President of India gave his assent on July8, 1994. The Act came
into force from February 4, 1995 by a Gazette notification.
The Transplantation of Human Organs Act (THOA) provides
for the regulation of removal, storage and transplantation of
human organs for the therapeutic purposes and prevention of
commercial dealings in human organs for matters connected
therewith or incidental thereto. THOA defines transplantation
as means of ‘Grafting of any human organ for any, therapeutic
purposes’. It also defines brain stem death and describes the
criteria for it; so that the organs may be removed from the
cadaver when anyone is declared dead after brain stem death.
For declaring a brain stem dead person and removal of organs
and their transplantation has been laid down in details in
THOA.1
The main provisions of the Act are as below;
1. The donor should give in writing in the presence of two or
more witnesses (at least one of whom is a near relative of
such person) at the time of his death or before for the
removal of organs from his body after death.
2. The age of authorization is 18 years and in cases of minor
the parents may give such authority.
3. In cases of unclaimed bodies lying in the hospital for more
than 48 hours, the person in -charge of the hospital can
authorize for the removal of the organs from such bodies.
4. When the body has been sent for postmortem examination
either for medico legal or pathological purposes, the
competent doctor can authorize for the removal of the
organs if he has reasons to believe that such human organs
will be not required for the purpose for which the body has
been sent for postmortem examination provided he is
satisfied that the deceased person has not expressed
before his death any objection for the removal.
5. No human organs removed from the body of a donor shall
be transplanted into the body of recipient unless the donor
is a near relative of the recipient.
6. The organs removed from the body of a live unrelated
donor can be transplanted into the body of any recipient
who may be in need of such organs, provided the prior
approval of the Authorization Committee has been
obtained.
7. The hospital engaged in removal, storage and
transplantation of human organs are to be registered. If
they violate any of the condition; the registration may be
cancelled after a proper inquiry.
8. Any person or hospital associated in the removal of any
human organ without authority shall be punished with
imprisonment up to 5 years and fine up to Rs 10,000/-.
9. The punishment for commercial dealing in human organs
is imprisonment not less than 2 years but may extend up to
7 years and liable to fine not less then Rs 10,000/- but may
extend to Rs 20,000/-.
Role of consent
It should be ascertained that;
A. Donation is not against the expressed wish of the donor.
The deceased persons’ consent during his or her life should
have been given or no wish to the contrary is expressed
regarding organ donation.
B. A positive consent of the next of the kin should be
obtained and no other relative should oppose the idea.
C. The clinical death as at present understood and accepted
is established.
D. In addition, the consent should not be obtained by wrong
persuasion.
E. In the case of medico legal autopsy no organ should be
taken without legal permission from the investigating
officer.
E. The consent of the person lawfully in possession of the
body has to be taken.
The Punjab Government adopted THOA, 1994 and was
deemed to have come in force in the State of Punjab w.e.f.
September 17,1996.2 it was notified in the official gazette on
8th January, 1997. But, the Punjab Govt. has not repealed the
Punjab Corneal Grafting Act 1963 till today. However the
Central Govt. has repealed the Ear Drum and Ear Bones
Act, 1982 and Eyes Act, 1982 at the time of enactment of
THOA, 1994.
Discussion
With the declaration of brain stem death cadaver
transplantation has come into effect. Moreover preservation
of harvested organs for the purpose of transplantation finds a
place in THOA, 1994.The live donor transplantation has been
accepted legally and the regulation of the hospitals where
removal and storage for transplantation of human organs are
to be performed is done by constituting appropriate authority.
In Punjab, both THOA, 1994 and Punjab Corneal Grafting Act,
1963 are operative. Though THOA, 1994 permits both live and
cadaver transplant, but Punjab Corneal Grafting Act, 1963
allows only (taking of cornea) cadaver removal of eyes. Inspite
of different regulations passed by both Centre and State, eye
donation for blinds is not forthcoming as it should have been
inspite of many accidental deaths. The National Programme
for Prevention of Blindness mentions eye donation as
important field to prevent corneal blindness.3 Due to religious
beliefs, social taboos, personal idiosyncrasies and lack of
awareness and education in this regard, people are not
enthusiastic about eye donation. So, cadaver transplantation is
a very good option for the removal of eyes. National Human
Rights Commission in its office letter no, DO No. 11/5/2001-
PRP&Pdt 29-1-2004 circulated to all States/UTs to check illegal
trade in human organs has suggested certain measures and
also mentions that cadaver transplant programme should be
promoted. Due to false accusations (from the society and
relatives of the deceased) of organs selling by the
doctors/Forensic Pathologists and legal intricacies they avoid
removal of eyes from a deceased for therapeutic purposes. So,
here comes the role of NGOs which can act an interface
between the medical personnel and the legal claimant of the
dead body. Whenever NGOs receive the information of death
then they should visit the site /place where the dead body is
present, as early as possible and every legitimate attempt
should be made for the removal of eyes for therapeutic
purposes after fulfilling the consent criteria (vide supra) i.e.
Donation should be with the informed valid consent of the
lawful claimant of dead body and it is not against the
expressed wish of the donor. If there is delay in making the
final decision of eyes donation and disposal of the dead body
then the body should be shifted to cold chamber to
prevent/retard putrefaction. As unclaimed dead bodies are to
be kept minimally for 48 hours (before final disposal) to wait
for the arrival of lawful claimant till that time it should be
preserved in cold chamber. The dead body can be kept for
more than 48 hours if there are reasons to believe that lawful
claimant will come after 48 hours. If no one turns up then the
organs can be removed with the permission of legal custodian
of the dead body i.e. investigating agency. Similarly in all
medico legal autopsy cases eyes can be removed with the
consent (vide supra) of lawful claimant and permission of the
police personnel especially in unclaimed dead bodies provided
these organs (which are to be removed) are not required for
medico -legal purpose . In my professional carrier of about 23
years, I have yet to come across with even a single postmortem
case where the conditions of eyes (opacities, trauma or another
eye disease) might have contributed or solely responsible in
causing the death. So, I can say that practically eyes of medicolegal
cadaver can be removed for therapeutic purposes after
fulfilling the laid down legal criteria. The removal of eyes
should be done by designated qualified ophthalmologist. The
removed organs/eyes should be deposited in the organ bank
which is under the control of an authorized person or NGOs.
The doctor who removes the eyes for therapeutic purposes is
protected against the charges of mutilating the dead body or
offending religious or emotional sentiments which are
considered offences under section 297 of Indian Penal Code.
Though NGOs are playing great role in making the society
aware of and educating about eye donation and providing
ophthalmologists for the eye removal and preserving the eyes
in eye banks. But NGOs hardly play any role for the cause of
prevention of corneal blindness as far as eye donation from
the medico legal cadaver is concerned. This field is not yet been
explored by NGOs or any body else. So, these bodies have a
great role to perform both in identified medico legal cadaver
as well as in unidentified dead bodies. They should evolve a
mechanism at their own level so that information of medico
legal death is received by them at the earliest and the eyes may
be removed without delay. It is possible only after taking the
police official /investigating agency and relatives of the
deceased into confidence both in unclaimed dead bodies cases
and medico legal cadaver respectively in the public interest at
large.
References
- The Transplantation of Human organs Bill, 1994.
- Extract from Punjab Govt. Gazette (Extra) dated 8th January,1997. NO. 11/50/96-4HB/3/766.
Ashok Chanana
Associate Professor, Department of Forensic Medicine & Toxicology, Govt. Medical College, Amritsar 143 001
ISSN-0971-720X (Print) • ISSN-0973-5672 (Electronic)
Abstract
Though the transplantation of human organs from donor to recipient is governed by an Act passed by parliament. The Act encourages the donor transplantation into the body of recipient who are near relative. Practically the power of giving consent for removal of organs for therapeutic purposes vests with the person who is lawful claimant of dead body. But in medico legal cadaver (whether identified or otherwise) there is no attempt for the removal of organs from cadaver on account of no interest of legal claimant due to medico legal nature of death where there is always unnecessary fear in the mind of people of investigating agencies. Here NGOs have a great role to play which can act as an interface between the legal claimant of cadaver and investigating agencies, so that the organs may be removed from cadaver for therapeutic purposes for public benefit before they get putrefied.
Keywords: Organ transplantation, consent, legal claimant and NGOs.
Introduction and review
The removal and transplantation of human organs is regulated by The Transplantation of Human Organs Bill which was passed by Parliament of India in June, 1994 and the President of India gave his assent on July8, 1994. The Act came into force from February 4, 1995 by a Gazette notification. The Transplantation of Human Organs Act (THOA) provides for the regulation of removal, storage and transplantation of human organs for the therapeutic purposes and prevention of commercial dealings in human organs for matters connected therewith or incidental thereto. THOA defines transplantation as means of ‘Grafting of any human organ for any, therapeutic purposes’. It also defines brain stem death and describes the criteria for it; so that the organs may be removed from the cadaver when anyone is declared dead after brain stem death. For declaring a brain stem dead person and removal of organs and their transplantation has been laid down in details in THOA.1
The main provisions of the Act are as below;
1. The donor should give in writing in the presence of two or
more witnesses (at least one of whom is a near relative of
such person) at the time of his death or before for the
removal of organs from his body after death.
2. The age of authorization is 18 years and in cases of minor
the parents may give such authority.
3. In cases of unclaimed bodies lying in the hospital for more
than 48 hours, the person in -charge of the hospital can
authorize for the removal of the organs from such bodies.
4. When the body has been sent for postmortem examination
either for medico legal or pathological purposes, the
competent doctor can authorize for the removal of the
organs if he has reasons to believe that such human organs
will be not required for the purpose for which the body has
been sent for postmortem examination provided he is
satisfied that the deceased person has not expressed
before his death any objection for the removal.
5. No human organs removed from the body of a donor shall
be transplanted into the body of recipient unless the donor
is a near relative of the recipient.
6. The organs removed from the body of a live unrelated
donor can be transplanted into the body of any recipient
who may be in need of such organs, provided the prior
approval of the Authorization Committee has been
obtained.
7. The hospital engaged in removal, storage and
transplantation of human organs are to be registered. If
they violate any of the condition; the registration may be
cancelled after a proper inquiry.
8. Any person or hospital associated in the removal of any
human organ without authority shall be punished with
imprisonment up to 5 years and fine up to Rs 10,000/-.
9. The punishment for commercial dealing in human organs
is imprisonment not less than 2 years but may extend up to
7 years and liable to fine not less then Rs 10,000/- but may
extend to Rs 20,000/-.
Role of consent
It should be ascertained that;
A. Donation is not against the expressed wish of the donor.
The deceased persons’ consent during his or her life should
have been given or no wish to the contrary is expressed
regarding organ donation.
B. A positive consent of the next of the kin should be
obtained and no other relative should oppose the idea.
C. The clinical death as at present understood and accepted
is established.
D. In addition, the consent should not be obtained by wrong
persuasion.
E. In the case of medico legal autopsy no organ should be
taken without legal permission from the investigating
officer.
E. The consent of the person lawfully in possession of the
body has to be taken.
The Punjab Government adopted THOA, 1994 and was deemed to have come in force in the State of Punjab w.e.f. September 17,1996.2 it was notified in the official gazette on 8th January, 1997. But, the Punjab Govt. has not repealed the Punjab Corneal Grafting Act 1963 till today. However the Central Govt. has repealed the Ear Drum and Ear Bones Act, 1982 and Eyes Act, 1982 at the time of enactment of THOA, 1994.
Discussion
With the declaration of brain stem death cadaver transplantation has come into effect. Moreover preservation of harvested organs for the purpose of transplantation finds a place in THOA, 1994.The live donor transplantation has been accepted legally and the regulation of the hospitals where removal and storage for transplantation of human organs are to be performed is done by constituting appropriate authority. In Punjab, both THOA, 1994 and Punjab Corneal Grafting Act, 1963 are operative. Though THOA, 1994 permits both live and cadaver transplant, but Punjab Corneal Grafting Act, 1963 allows only (taking of cornea) cadaver removal of eyes. Inspite of different regulations passed by both Centre and State, eye donation for blinds is not forthcoming as it should have been inspite of many accidental deaths. The National Programme for Prevention of Blindness mentions eye donation as important field to prevent corneal blindness.3 Due to religious beliefs, social taboos, personal idiosyncrasies and lack of awareness and education in this regard, people are not enthusiastic about eye donation. So, cadaver transplantation is a very good option for the removal of eyes. National Human Rights Commission in its office letter no, DO No. 11/5/2001- PRP&Pdt 29-1-2004 circulated to all States/UTs to check illegal trade in human organs has suggested certain measures and also mentions that cadaver transplant programme should be promoted. Due to false accusations (from the society and relatives of the deceased) of organs selling by the doctors/Forensic Pathologists and legal intricacies they avoid removal of eyes from a deceased for therapeutic purposes. So, here comes the role of NGOs which can act an interface between the medical personnel and the legal claimant of the dead body. Whenever NGOs receive the information of death then they should visit the site /place where the dead body is present, as early as possible and every legitimate attempt should be made for the removal of eyes for therapeutic purposes after fulfilling the consent criteria (vide supra) i.e. Donation should be with the informed valid consent of the lawful claimant of dead body and it is not against the expressed wish of the donor. If there is delay in making the final decision of eyes donation and disposal of the dead body then the body should be shifted to cold chamber to prevent/retard putrefaction. As unclaimed dead bodies are to be kept minimally for 48 hours (before final disposal) to wait for the arrival of lawful claimant till that time it should be preserved in cold chamber. The dead body can be kept for more than 48 hours if there are reasons to believe that lawful claimant will come after 48 hours. If no one turns up then the organs can be removed with the permission of legal custodian of the dead body i.e. investigating agency. Similarly in all medico legal autopsy cases eyes can be removed with the consent (vide supra) of lawful claimant and permission of the police personnel especially in unclaimed dead bodies provided these organs (which are to be removed) are not required for medico -legal purpose . In my professional carrier of about 23 years, I have yet to come across with even a single postmortem case where the conditions of eyes (opacities, trauma or another eye disease) might have contributed or solely responsible in causing the death. So, I can say that practically eyes of medicolegal cadaver can be removed for therapeutic purposes after fulfilling the laid down legal criteria. The removal of eyes should be done by designated qualified ophthalmologist. The removed organs/eyes should be deposited in the organ bank which is under the control of an authorized person or NGOs. The doctor who removes the eyes for therapeutic purposes is protected against the charges of mutilating the dead body or offending religious or emotional sentiments which are considered offences under section 297 of Indian Penal Code.
Though NGOs are playing great role in making the society aware of and educating about eye donation and providing ophthalmologists for the eye removal and preserving the eyes in eye banks. But NGOs hardly play any role for the cause of prevention of corneal blindness as far as eye donation from the medico legal cadaver is concerned. This field is not yet been explored by NGOs or any body else. So, these bodies have a great role to perform both in identified medico legal cadaver as well as in unidentified dead bodies. They should evolve a mechanism at their own level so that information of medico legal death is received by them at the earliest and the eyes may be removed without delay. It is possible only after taking the police official /investigating agency and relatives of the deceased into confidence both in unclaimed dead bodies cases and medico legal cadaver respectively in the public interest at large.
References
- The Transplantation of Human organs Bill, 1994.
- Extract from Punjab Govt. Gazette (Extra) dated 8th January,1997. NO. 11/50/96-4HB/3/766.
