ORGAN TRADE IN INDIA:

A CRITICAL ANALYSIS OF THE

TRANSPLANTATION OF HUMAN
ORGANS AND TISSUES ACT, 1994

RATIN BASU
 1.1 INTRODUCTION

The Transplantation of Human Organs and Tissues Act, passed in 1994,

governs organ transplantations in India and outlaws the commercial use of
human organs and tissues. The Act also attempts to encourage the
donation of deceased or cadaver organs and acknowledges brain death as a
legal cause of death. Even after more than two decades of its
implementation, the rate of deceased donations has not increased. The law
has a number of shortcomings, and organ trafficking and trade continue to
occur in India at alarming rates, demonstrating that it is unable to stop the
problem of organ trading in the nation. Section 19 and Section 19A of the
Act provide for punishment for commercial and illegal dealings in human
organs and tissues.
 CONTINUE…
The ever-increasing disparity between the rich and poor in India, the wide gap
between the demand and supply of organs, the absence of national health
insurance schemes make the commercialisation of organs and tissues a simple
and attractive business proposition for some and a solution for others. Poor
and vulnerable sections of the society are being coerced into donating their
organs as a near relative or someone who has affection or attachment towards
the recipient while the fact is that the donor and recipient did not know each
other until a few days ago. Several such instances of removal of organs even
without the knowledge of the donor without satisfying pre-transplant and post-
transplant requirements leading to serious health complications have come to
light through various media reports and scientific publications from other
countries.
 1.2 STATEMENT OF THE
PROBLEM

Despite having a specific legislation to combat the threat of organ trade,

trafficking in human organs and tissues are widely prevalent in India and
is increasing at an alarming rate. The Transplantation of Human Organs
and Tissues Act, 1994 punishes commercial dealings in human organs or
tissues. However, organ commerce and kidney scandals are being
regularly reported in India and the country is considered as one of the
biggest markets for organ trafficking despite having a specific legislation
on the matter.
 1.3 SCOPE OF THE STUDY
This research study mainly focuses on the Indian legislation regulating organ
transplantations and preventing commercialisation of organs which is the
Transplantation of Human Organs and Tissues Act, 1994. The various objectives
of the Act and how far the objectives have been achieved after more than two
decades of its implementation is analyzed.
The rate of cadaver organ donations is examined and the need for promoting the
same is discussed. The various factors contributing to the flourishing organ
market in the country is analysed and an attempt is made to propose solutions for
the same. Though the study mainly focuses on the Indian scenario, the legal
position in other countries like USA and Australia is also analysed in order to
provide a comparative perspective on the matter.
 1.4 RESEARCH QUESTIONS

1. Whether the Transplantation of Human Organs and Tissues Act, 1994 has been
effective in curbing organ trade and commercialization of organs in India?
2. Whether the Transplantation of Human Organs and Tissues Act, 1994 have any
legal flaws facilitating organ trade in the country?
 1.5 RESEARCH OBJECTIVES

1. To identify and study the causes for the increasing rate of illegal organ
trafficking in India.
2. To analyze the Transplantation of Human Organs and Tissues Act,
1994
3. To identify the drawbacks or flaws in the Act.
4. To examine organ trade in a comparative perspective and laws
governing the same in different countries.
5. Judicial review on transplantation of human organs
 1.6 HYPOTHESIS

The Transplantation of Human Organs and Tissues Act, 1994 fails to

promote cadaver organ donations and prevent commercial dealings in
human organs in India.
 1.7 RESEARCH METHODOLOGY

• The research study is proposed to be undertaken through the method of

doctrinal research by analyzing the legislations specially, the provisions
of the Transplantation of Organs and Tissues Act, 1994
• The researcher relies on various secondary sources of data like WHO
reports, articles by investigative journalists, Government websites,
newspaper and journal articles, etc. for the purpose.
 1.8 CHAPTERISATION
CHAPTER 1: INTRODUCTION

This chapter aims to provide a broad review of the state of the organ trade,
cadaver organ donations, and the necessity of this research study in India.The
chapter introduces the elements that make the Transplantation of Human
Organs and Tissues Act, 1994, ineffective. To help the readers comprehend the
problem, need, and scope of this study, the problem and scope of the research
study have been described, and the goals and objectives of the research study,
research questions, and hypothesis have been listed in this chapter. A summary
of each chapter's content is also provided, along with a list of the chapters.
 CHAPTER 2:
EVOLUTION OF ORGAN TRANSPLANTATION
AND LEGAL FRAMEWORK IN INDIA

In India, there is no law governing organ transplantation, which has resulted in kidney
scandals and illegal organ trafficking. The weaker members of society were heavily taken
advantage of by intermediaries and dishonest medical professionals. The Transplantation of
Human Organs and Tissues Act, 1994 was enacted as a result of a rise in such cases and a
number of other considerations. The legislation was passed with the prevention of commercial
dealings in human organs and tissues as well as the control of the transplantation of human
organs and tissues for therapeutic purposes as its two main goals. This chapter discusses the
development of organ transplantation as well as the legal system in place to combat the illegal
organ trade.
 CHAPTER 3:
FACTORS CONTRIBUTING TO ORGAN
TRADE IN INDIA

The country's thriving organ trade is a result of numerous causes. There is a

significant imbalance between the supply and demand of organs, doctors'
involvement and support in the process, a lack of effective government
initiatives, a low rate of cadaver organ donation, ethical, emotional, and
religious restrictions on organ donation, among other important factors, which
have all played a significant role in India's thriving illegal organ market. These
are the main causes of the continued commercialization of organs and tissues in
India. The increasing gap between the rich and the poor is another factor in the
illegal organ trade. This chapter goes into great length on these elements and the
context.
 CHAPTER 4:
FLAWS IN THE
TRANSPLANTATION OF HUMAN
ORGANS AND TISSUES ACT, 1994
 CHAPTER 5:
JUDICIAL REVIEW
 CHAPTER 6:
COMPARATIVE STUDY (POSITION
IN USA AND AUSTRALIA)
CHAPTER 7: CONCLUSION
 CHAPTER 2:
EVOLUTION OF ORGAN TRANSPLANTATION
AND LEGAL FRAMEWORK IN INDIA

2.1 INTRODUCTION
2.2 INDIA’S HISTORY OF ORGAN TRANSPLANTATION
2.3 EVOLUTION OF LEGAL FRAMEWORK
2.3.1 L.M. SINGHVI COMMITTEE
2.3.2 THE TRANSPLANTATION OF HUMAN ORGANS ACT, 1994
2.3.3 THE TRANSPLANTATION OF HUMAN ORGANS RULES, 1995
2.3.4 THE TRANSPLANTATION OF HUMAN ORGANS (AMENDMENT) RULES, 2008
2.3.5 THE TRANSPLANTATION OF HUMAN ORGANS (AMENDMENT) ACT, 2011
2.3.6 THE TRANSPLANTATION OF HUMAN ORGANS AND TISSUES RULES, 2014
2.4 CONCLUSION
 2.1 INTRODUCTION
Organ transplantation is referred to as the transfer or engraftment of human cells, tissues or organs from
a donor to a recipient with the aim of restoring functions in the body. It is considered as the medical
miracle of the 20th century and it has evolved over the years to be at a significantly developed stage as
it can be seen today. For a significant duration, there were no legal frameworks to regulate organ
transplantations and prevent any commercial dealings. The need for an effective legislation was felt due
to the disparity between demand and supply of human organs, scarcity of organs leading to unethical
practices, etc. This chapter examines the history and evolution of organ transplantation with particular
focus on Indian historical milestones. The legislative history with respect to organ transplantations,
which is mainly the evolution of the Transplantation of Human Organs Act, 1994 and its journey till the
2014 Rules is also analyzed. This includes various amendments over the years with respect to the Act
and related rules, various committee reports on the need and functioning of the Act and the significant
changes in relation to the prevention of commercialization of organs or tissues in the country.
 CONTINUE….
2.2 INDIA’S HISTORY OF ORGAN TRANSPLANTATION
2.3 EVOLUTION OF LEGAL FRAMEWORK
2.3.1 L.M. SINGHVI COMMITTEE
2.3.2 THE TRANSPLANTATION OF HUMAN ORGANS ACT, 1994
2.3.3 THE TRANSPLANTATION OF HUMAN ORGANS RULES, 1995
2.3.4 THE TRANSPLANTATION OF HUMAN ORGANS (AMENDMENT) RULES, 2008
2.3.5 THE TRANSPLANTATION OF HUMAN ORGANS (AMENDMENT) ACT, 2011
2.3.6 THE TRANSPLANTATION OF HUMAN ORGANS AND TISSUES RULES, 2014
2.4 CONCLUSION
 CHAPTER 3:
FACTORS CONTRIBUTING TO ORGAN
TRADE IN INDIA

3.1 INTRODUCTION
3.2 ORGAN TRADE AND TRAFFICKIN
3.3 FACTORS FACILITATING ORGAN TRADE IN THE COUNTR
3.3.1 WIDE GAP BETWEEN DEMAND AND SUPPLY OF ORGANS
3.3.2 COLLUSION OF MEDICAL PROFESSIONALS
3.3.3 POVERTY AND UNEMPLOYMENT
3.3.4 LOW RATES OF CADAVER ORGAN DONATIONS AND OVERRELIANCE ON LIVE
DONA
3.3.5 EMOTIONAL, CULTURAL/RELIGIOUS CONSTRAINTS IN ORGAN DONATION
3.3.6 LACK OF AWARENESS ABOUT ORGAN DONATION
3.4 CONCLUSION
 3.1 INTRODUCTION

Organ transplantations are considered as one of the most outstanding achievements of the medical
industry by saving and extending the lives of thousands of patients with organ failures. Numerous
instances of generosity by organ donors and their families and several significant scientific and clinical
advances achieved by dedicated medical professionals have made transplantation not only a life-saving
therapy but a symbol of human solidarity.51 However, such a process has been tarnished by the several
instances of trafficking in human organs and trade in human organs, which involves patients who are
ready to spend any amount to save their own lives and the poor and vulnerable who are ready to sell
their organs for cash. In 2007, it was estimated that up to 10% of organ transplantations across the world
involved such illegal practices.52
 CONTINUE…

India is a commonly known organ exporting country, where organs are regularly transplanted from local
donors to foreigners for money. Though the enactment of the Transplantation of Human Organs and
Tissues Act, 1994 seems to have contributed to reductions in the number of foreign recipients, the
underground organ market is still existent and resurging in India.53 The Voluntary Health Association of
India estimates that about 2000 Indians sell a kidney every year, and this figure does not include all
donations and transplantations taking place under the proper procedures.54 This chapter deals with the
reality of organ trade and organ trafficking, especially in India, various instances of illegal organ
transplantations in the country, and most importantly, examines the multiple factors facilitating organ
trade in India which includes the wide gap between demand and supply of organs, involvement of
medical professionals in such practices, low rate of cadaver organ donations and high rate of live
donations, cultural/religious and emotional constraints, lack of awareness about organ donations, etc.