Protection, Punishment and Persuasion – Organ Donation Laws Around the World

Dr. Shivangi Shankar, MMCRI, Mysuru

Through the years, there have been urban legends and Crime Patrol-esque episodes about organ trade. While organ transplant promises to heal the recipient, the fear of organ donation (or forced organ theft) has plagued the minds of people throughout the world. 

Regulations thus have the dual duty of preventing organ trade/theft/trafficking and encouraging altruistic/voluntary donation.

India: Opt-In donation

India first passed The Transplantation of Human Organs Act in 1994¹ and has most recently been amended in 2014. Currently, India follows an opt-in system whereby organs can only be harvested after brain death/cardiac death with explicit consent/pledge of the donor/family of donor. 

The current laws² prevent organ theft by punishing it with 5-10 years of jail and a fine of Rupees 20 lakhs to Rupees one crore. It also mandates that living donors must be immediately related to the recipient, with the provision for swapping only, if willing first relatives are not a match. All non related donors need the permission of an Authorization Committee, established by their state.

Opt-In Donation: Explainer by Shivangi Shankar

The transplant laws in India try to prevent trafficking and preserve the autonomy and dignity of donors by allowing people to opt-in to organ donation. However, it offers no incentives to donors.  The donation rate in India remains low(0.86 per million)³ despite more awareness and access now. 

Image:Comparison between original 1994 THOA and 2014 amendment  http://www.ijtonline.in/⁴

Worldwide: Opt-Out models

To increase organ donations, several countries have adopted opt-out donation systems, perhaps the most recent being England⁵(20th May, 2020). Other nations that have adopted it with some success are: Austria, Belgium, the Czech Republic, Finland, France, Greece, Hungary, Israel, Italy, Luxembourg, Norway, Poland, Slovenia, Spain, Sweden, Singapore and Turkey. 

Opt-Out Donation: Explainer by Shivangi Shankar

Opt-Out donation presumes consent. So, unless one opts out of organ donation, it is assumed that people are consenting to donating their organs after death. It was thought that this would increase organ donation hugely, yet, as seen in the case of Chile⁶, presumed consent alone doesn’t help. It has to be combined with the right IEC, a functional and trustworthy healthcare system as well as incentive to donate. 

Priority Allocation

To tackle this, most countries have another provision, the priority allocation system. While the specifics vary, the crux in nearly all is that if ever in need of an organ, a person who has consented to donating their organs will be higher in the list of potential recipients. For instance, Israel offers a tiered system where maximum priority, regular priority and second priority are allotted according to the type of donation consented to⁷(living, cadaveric, etc.) Singapore has a much more binary priority allocation; if you withdraw consent, you forfeit the rights to receiving an organ as well. 

Opt-Out Donation+Priority Allocation: Explainer by Shivangi Shankar

Legislation and policies framed for organ donation serve to ensure the ease of altruistic donation. It puts checks in place to prevent organ theft and free riding(pledging organs only when you need them, then revoking consent).

The Way Forward?

While Indian regulations focus on dignity of the donor and containment of organ trade, there are lessons to be learnt regarding encouraging more donations. Opt-in/Explicit consent still faces challenges due to lack of faith in the healthcare system, rampant organ trade and social and religious stigma. There is also the glaring issue of a tedious process for registering for organ donation. Hence, only immediate relatives stay long enough to confirm whether the transplant is required, the hospital can carry it out and the patient can withstand the procedure. Voluntary donations thus remain rare. While legislation aims to protect the rights of the patient and doctor, currently, protocol within hospitals and re-establishing faith in healthcare are much more likely to encourage donation, when illness comes to transplant. 

References: 

1.Laws and Rules Governing Transplantation in India(n.d.) retrieved from https://www.organindia.org/organ-transplant-laws-made-easy/

2. Rao, Menaka India’s laws on organ transplants do little to protect rights of organ donors(2017, December 14) retrieved from https://scroll.in/pulse/861390/indias-laws-on-organ-transplants-to-little-to-protect-rights-of-organ-donors

3. India’s Organ Donation Rate (n.d.) retrieved from https://www.organindia.org/deceased-organ-donation-data/#menu2

4. Sahay M. Transplantation of human organs and tissues Act-“Simplified”. Indian J Transplant [serial online] 2018 [cited 2020 Sep 10];12:84-9. Available from: http://www.ijtonline.in/text.asp?2018/12/2/84/235594

5. Max and Keira’s Law comes into effect in England(2020, 20 May) Available from: https://www.organdonation.nhs.uk/get-involved/news/max-and-keira-s-law-comes-into-effect-in-england/

6. Zúñiga-Fajuri A. Increasing organ donation by presumed consent and allocation priority: Chile. Bull World Health Organ. 2015;93(3):199-202. doi:10.2471/BLT.14.139535

7. Cronin, A.J. Points mean prizes: priority points, preferential status and directed organ donation in Israel. Isr J Health Policy Res 3, 8 (2014). https://doi.org/10.1186/2045-4015-3-8

8.Cover Image Credits: Google Images