Development of Organ Transplantation in Light of Criminal and Constitutional Laws in India

Abstract

Introduction: The development of technology in the arena of organ transplantation bloomed during 1980s in India. In later years, there was a shortage of organs as the rate of cadaver donation was quite low; therefore, this led to unethical and coerced practice in organ transplantation. The socioeconomic group that was most impacted by these activities consisted of individuals in dire need of funds and were prepared to trade with important organs in return for money. Methods: The study adopts a desk-based methodology, categorized into primary and secondary data. The primary data consist of analysis of the Transplantation of Human Organs and Tissues Act (THOTA), 1994 read with 2011 Amendment and 2014 Rules. Further various orders and resolutions of the Government of India, and committees constituted by the Center as well as Hon’ble High Court were analyzed. The Secondary data included analysis of parliamentary questions, and numerous judgments of Hon’ble Supreme Court of India and various High Courts across the country. Results: Various provisions of THOTA, 1994 should be re-examined. Due to rampant poverty, illicit organ trafficking is on a rise, with women targeted the most for kidneys, thus impacting the social structure of the society. The most trafficked organ among the liver, lungs, kidney, and heart is kidney. Conclusion: There is a dire need for health legislations with provisions to increase the donor pool. It is recommended that in addition to using the cadaver organ pool through road deaths and brain-dead victims, we should transition to both the presumed consent and opt-out method of permission and creating awareness of the donation of organs among the general public.

Keywords

• article 21
• constitution of india
• illicit trafficking
• organ transplantation