Can One Will His Organs or Give a Directed Organ Donation Instruction or his legal heir can insist on a particular organ to be given to a particular person?
The Transplantation of Human Organ Act (THOA )1994 is ambiguous on this issue except to put a ban on the trade of human organs and coercion. But the question is can a person say in his advance declaration or in its absence the legal heir put a condition that one or more organs are to be given to a particular person or exclude some category of persons from benefiting from this transplantation? There are a variety of opinions and people argue that once you give up voluntarily then the organs are state property by virtue of it being the property of organ sharing organization or National Organ and Tissue Transplant Organization (NOTTO) in India becomes the deciding authority to decide who should get the organs based on four guiding principles and on first come first serve basis.
A person can give a directed organ donation to a close relative while he is alive and it is permitted then it should also apply to a person who is brain dead and since he cannot make a decision or convey it hence his legal heirs have the right to decide. In a few cases of kidney donation, a portion of liver or blood/plasma/platelets donation is in the public domain.
A person can make a will of his self acquired property then it applies to reasoning that he can decide as to whom to give or not to give his organs and his wish should be honored as his organs are his property only. Of course in this case it will be in the form of advance declaration. Moreover, as long as he is alive it is his organs and after that, whether he is brain dead or dead the legal heirs are the custodian of the body and hence they have a right to decide whether there is any directed organ donation or not and state should not have any say in this matter and should honor their wishes.
From a human body, about 20 organs can be harvested and used for others depending upon their condition but if because one or two directed organ donations are not accepted then the legal heirs can refuse to donate the organs and thus may deprive 18 to 19 other recipients’ of a chance to live or benefit from the remaining organs. As such the organ donation in India is very low at 0.5 per million and there is a serious need to boost this organ donation. For this awareness among the citizens is needed.
USA in 2009 has adopted this practice of directed organ donation and UK in 2010. But in India, the issue is not very clear except in the state of Gujarat and Tamilnadu where directed organ donation is permitted. Therefore, in order to boost organ donation and at least some people getting benefit from these donated organs, it would be prudent to permit directed organ donation as per the wishes of the person or legal heirs and proper law or rules need to be framed in this regard.
What is required, therefore, is a provision in the THO Act permitting this directed organ donation, of course with some checks and conditions so that trade as well as profiting from this organ donation is avoided and not permitted.
This is a post written by RK Singh, Ex-Air Force Office who took premature retirement in 1993 and then helped in setting up several factories all over India. He is based at Noida and deeply into social service to help people in general who have legal issues or problems. He is a postgraduate in Physics from Allahabad University and Master’s in Defence Studies, Business Administration & environmental Sciences besides a Degree in Law. He has published 23 research papers and a number of articles.
