The Transplantation of Human Organs Act, 1994 was enacted by the Parliament during 1994 and came into force on 4th February, 1995 in the States of Goa, Himachal Pradesh and Maharashtra and all the Union Territories. Thereafter it was adopted by all States except the States of Jammu & Kashmir and Andhra Pradesh, which have their own legislations to regulate transplantation of Human Organs. The main purpose of the Act is to regulate the removal, storage and transplantation of human organs for therapeutic purposes and to prevent commercial dealings in human organs. The Act contains detailed provisions relating to the authority for removal of human organs, preservation of human organs, regulation of hospitals conducting the removal, storage or transplantation of human organs, functions of appropriate authority, registration of hospitals and punishment/penalties for offences relating to aforesaid matters.
Despite having put into place a regulatory mechanism for transplantation of human organs, there have been a spate of reports in the print and electronic media about a thriving human organ trade in India and the consequential exploitation of economically weaker sections of the society. There has, therefore, been an increasing perception in civil society that while the Act has not been effective in curbing commercial transactions in organ transplant, it has thwarted genuine cases due to the complicated and long drawn process involving organ donation.
In order to make the organs transplantation more transparent and patient friendly, Cabinet has approved the proposals of the Ministry of Health & Family Welfare to amend the provisions of the Act and also for imposing stringent penalties on persons/hospitals violating the provisions of the Act.
THE AMMENDMENTS PROPOSED
The Hon’ble High Court of Delhi in CWP No. 813/2004 vide its order dated 06.09.2004 had set up a Committee to examine the provisions of Transplantation of Human Organs Act, 1994, and the Transplantation of Human Organs Rules, 1995. The report was submitted on 25.05.2005.
A National Consultation was held on 18.05.2007 and the report was submitted in the second fortnight of August 2007. The recommended changes required amendments in the Transplantation of Human Organs Act, 1994 and the Rules framed there under. These changes are intended to facilitate genuine cases, increase transparency in transplantation procedures and to provide deterrent penalties for violation of the law. In so far as the Act is concerned, the following amendments have been proposed:
1. To empower Union Territories, specially Government of NCT of Delhi to have their own appropriate authority instead of DGHS and / or Additional DG (Hospitals).
2. To make the punishments under the Act harsh and cognizable for the illegal transplantation activities to deter the offenders from committing this crime.
3. To provide for registration of the centres for removal of organs from the cadavers and brain stem dead patients for harvesting of organs instead of registration of centres for transplantations only.
4. To allow swap operations between the related donor and recipients who do not match themselves but match with other similar donors / recipients.
Sale / purchase of human organs is already prohibited under Transplantation of Human Organs Act, 1994. Appropriate authorities established under this Act are responsible and empowered to check the illegal activities of human organs trafficking.
The Link to the Ammendment in Rules