LAW AND MEDICINE ASSIGNMENT

Mid Semester Assignment No. - 1

SUBMITTED TO

AMITY LAW SCHOOL, MUMBAI

FOR THE PART FULLFILMENT

OF

[BBA LL.B. – 8th Semester]

By

Anirudh Rana

A70621518010

UNDER THE GUIDANCE OF

Ms. Vaishali Wankhede

AMITY LAW SCHOOL

ACADEMIC YEAR: 2018-2023 [Even Semester]

Q. Explain in detail the various provisions if the TOHO Act dealing with authority of
removal of human organs and tissues.

Transplantations of Human Organs Act provides for the regulation of removal, storage and
transplantation of human organs for therapeutic purposes and for the prevention of
commercial dealings in human organs and for matters connected therewith or incidental
thereto.
Entire Chapter 2 of the Act deals with authority of removal of organs and tissues beginning
from Section 3 to Section 9.

Section 3. Authority for removal of 1 [human organs or tissues or both]. This Section
provides that organs hall be removed by a registered practitioner only.
Duty of the registered medical practitioner working in a hospital, in consultation with
transplant co-ordinator, if such transplant co-ordinator is available –
1. To ascertain that before the time of his death he/she had agreed for such removal or
organs and tissues and such authentication record copy should be brought out.
2. where no such authority was made by such person, to make aware to that person or
near relative for option to authorize or decline for donation of human organs
3. to require the hospital to inform in writing to the Human Organ Removal Centre for
removal, storage or transplantation of human organs or tissues
If any donor had, in writing and in the presence of two or more witnesses (at least one of
whom is a near relative of such person), unequivocally authorised at any time before his
death, the removal of any human organ of his body, after his death, for therapeutic purposes,
the person lawfully in possession of the dead body of the donor shall, unless he has any
reason to believe that the donor had subsequently revoked the authority aforesaid, grant to a
registered medical practitioner all reasonable facilities for the removal, for therapeutic
purposes.
Under the virtue of Section 3 of THOA, 1994, Donor would fall under the following two
categories;
Living Donor : any person not less than 18 years of age, who voluntarily authorizes the
removal of any of his organ and/or tissue, during his or her lifetime solely for therapeutic
purposes.
Deceased Donor : Anyone, regardless of age, race or gender can become a donor of any
organ and/or tissue after his/her death (Brainstem/Cardiac). A person who is in lawful
possession of the dead body or the free consent of ‘near relative [Section 2(i)]’ is required for
the said purpose. If the deceased donor is under the age of 18 years, then the consent required
from one of the parent or any near relative authorized by the parents is necessary.

(3) Where no such authority as is alluded to in sub-segment (2), was made by any individual
before his demise yet no complaint was additionally communicated by such individual to any
of his 1 [human organs or tissues or both] being utilized after his passing for restorative
purposes, the individual legitimately possessing the dead body

of such individual may, except if he has motivation to accept that any close to relative of the
departed individual has issue with any of the departed individual's 1[human organs or tissues
or both] being utilized for helpful purposes, approve the evacuation of any 2 [human organ or
tissue or both] of the departed individual for its utilization for restorative purposes.

(4) The power given under sub-segment (1) or sub-area (2) or, by and large, sub-segment (3)
will be adequate warrant for the evacuation, for helpful purposes, of the 2 [human organ or
tissue or both]; however no such evacuation will be made by any individual other than the
enrolled clinical expert:

[Given that an expert having such capabilities and experience, as might be endorsed, may
enucleate a cornea.]

(5) Where any 2 [human organ or tissue or both] is to be removed from the body of a
departed individual, the enlisted clinical specialist will fulfill himself, before such expulsion,
by an individual assessment of the body from which any 2 [human organ or tissue or both] is
to be eliminated, that life isterminated in such body or, where it seems, by all accounts, to be
an instance of cerebrum stem demise, that such passing has been ensured under sub-segment
(6).

(6) Where any 2 [human organ or tissue or both] is to be removed from the body of an
individual in the occasion of his mind stem demise, no such evacuation will be attempted
except if such passing is affirmed, in such
structure and in such way and on fulfillment of such circumstances and prerequisites as might
be recommended, by a Board of clinical specialists comprising of the accompanying,
specifically: —
(I) the enlisted clinical professional responsible for the medical clinic in which mind stem
passing hashappened;
(ii) an autonomous enlisted clinical professional, being a subject matter expert, to be
designated by the enrolled clinical specialist indicated in condition (I), from the board of
names supported by the Suitable Authority;
(iii) a nervous system specialist or a neurosurgeon to be designated by the enlisted clinical
expert indicated in proviso (I), from the board of names supported by the Appropriate
Authority:
[Given that where a nervous system specialist or a neurosurgeon isn't accessible, the enrolled
clinical professional might assign a free enlisted clinical expert, being a specialist or a doctor
and an anesthetist or intensivist subject to the condition that they are not individuals from the
transplantation group for the concerned beneficiary and to such circumstances as might be
rescribed;]
(iv) the enrolled clinical expert treating the individual whose mind stem demise has
happened.
(7) Notwithstanding anything contained in sub-area (3), where cerebrum stem demise of any
individual, under eighteen years old, happens and is ensured under sub-segment (6), any of
the guardians of the expired individual might give authority, in such structure and in such
way as might be endorsed, for the evacuation of any 3 [human organ or tissue or both] from
the body of the departed individual.
Section 4: Removal of 4 [human organs or tissues or both] not to be authorised in certain cases.—
No facilities shall be granted no authority under the said provision of Section 3 if the person n
required to grant such facilities, or empowered to give such authority, has reason to believe that an
inquest may be required to be held in relation to such body in pursuance of the provisions of any law
for the time being in force.

No authority for the removal of the body of a deceased person shall be given by a person to whom
such body has been entrusted solely for the purpose of interment, cremation or other disposal.

Section 5: Authority for removal of 4 [human organs or tissues or both] in case of unclaimed bodies
in hospital or prison – In a case where a dead body is lying in a prison or hospital and there has been
no connection from any relative in order to claim it within 48 hours from death authority for the
removal of any 3 [human organ or tissue or both] from the dead body which so remains unclaimed
may be given, in the prescribed form, by the person in charge, for the time being, of the
management or control of the hospital or prison, or by an employee of such hospital or prison
authorised in this behalf by the person in charge of the management or control thereof.

No authority shall be given under sub-section (1) if the person empowered to give such authority has
reason to believe that any near relative of the deceased person is likely to claim the dead body even
though such near relative has not come forward to claim the body of the deceased person within the
time specified

Section 6: Authority for removal of 4 [human organs or tissues or both] from bodies sent for post-
mortem examination for medico-legal or pathological purposes.— When a body is sent to a post
mortem –

1. for medico-legal purposes by reason of the death of such person having been caused by
accident or any other unnatural cause
2. for pathological purposes

the person competent under this Act to give authority for the removal of any 1 [human organ or
tissue or both] from such dead body may, if he has reason to believe that such 1 [human organ or
tissue or both] will not be required for the purpose for which such body has been sent for post-
mortem examination, authorise the removal, for therapeutic purposes, of that 1 [human organ or
tissue or both] of the deceased person provided that he is satisfied that the deceased person had
not expressed, before his death, any objection to any of his 2 [human organs or tissues or both]
being used, for therapeutic purposes after his death or, where he had granted an authority for the
use of any of his 2 [human organs or tissues or both] for therapeutic purposes, after his death, such
authority had not been revoked by him before his death.

Section 7. Preservation of 2 [human organs or tissues or both].—After the removal of any 1 [human
organ or tissue or both] from the body of any person, the registered medical practitioner shall take
such steps for the preservation of the 1 [human organ or tissue or both] so removed as may be
prescribed.
Section 8. Savings.—(1) Nothing in the foregoing provisions of this Act shall be construed as
rendering unlawful any dealing with the body or with any part of the body of a deceased person if
such dealing would have been lawful if this Act had not been passed.

(2) Neither the grant of any facility or authority for the removal of any 1 [human organ or tissue or
both] from the body of a deceased person in accordance with the provisions of this Act nor the
removal oil any 1 [human organ or tissue or both] from the body of a deceased person in pursuance
of such authority shall be deemed to be an offence punishable under section 297 of the Indian Penal
Code (45 of 1860).

Section 9. Restrictions on removal and transplantation of human organs.—

(1) Save as otherwise provided in sub-section (3), no human organ removed from the
body of a donor before his death shall be transplanted into a recipient unless the donor is
a near relative of the recipient.
(2) Where any donor authorises the removal of any of his human organs after his death
under sub-section (2) of section 3 or any person competent or empowered to give
authority for the removal of any human organ from the body of any deceased person
authorises such removal, the human organ may be removed and transplanted into the
body of any recipient who may be in need of such human organ.
(3) If any donor authorises the removal of any of his human organs before his death under
sub-section (1) of section 3 for transplantation into the body of such recipient, not being a
near relative, as is specified by the donor by reason of affection or attachment towards the
recipient or for any other special reasons, such human organ shall not be removed and
transplanted without the prior approval of the Authorisation Committee.
(4) (a) The Central Government shall constitute, by notification, one or more
Authorisation Committees consisting of such members as may be nominated by the
Central Government on such terms and conditions as may be specified in the notification
for each of the Union territories for the purposes of this section.
(b) The State Government shall constitute, by notification, one or more Authorisation
Committees consisting of such members as may be nominated by the State Government
on such terms and conditions as may be specified in the notification for the purposes of
this section.
(5) On an application jointly made, in such form and in such manner as may be
prescribed, by the donor and the recipient, the Authorisation Committee shall, after
holding an inquiry and after satisfying itself that the applicants have complied with all the
requirements of this Act and the rules made thereunder, grant to the applicants approval
for the removal and transplantation of the human organ.
(6) If, after the inquiry and after giving an opportunity to the applicants of being heard,
the Authorisation Committee is satisfied that the applicants have not complied with the
requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded
in writing, reject the application for approval.