Human Organ Transplantation and the Legal Situation – Inhuman Business in Human Law

Organ Transplantation
Illustration by Rafael Estrada

Technology development and application will undoubtedly be a major driving force in the evolution of world society in the first decades of the twenty-first century. New technologies promise unprecedented improvements in our lives in medicine, agriculture, material science, communication, and a variety of other fields. Despite the joy surrounding this rush of creation, there is cause for alarm. The present study seeks to examine human organ transplantation and its legal situation and it will also be dealing with how human organ transplantation has become an inhuman business in human law.

Human organ transplantation or organ transplantation is the process of transferring an organ from one body to another. The person who donates the organ is known as the donor, and the person who receives it is known as the receiver. Organ transplantation is a procedure that replaces a damaged organ in the recipient with the donor’s working organ, allowing the recipient to function normally. The person providing the organ (donor) can be alive or dead. Organ transplantation is a gift to the medical business since it has saved the lives of people who might otherwise have died. There are a number of laws that must be observed when performing an organ transplant.

Evolution of Organ Transplantation

In the 18th century, researchers experimented with organ transplantation on animals and people. Despite numerous failures throughout the years, scientists were performing successful organ transplants by the mid-twentieth century. Kidney, liver, heart, pancreas, intestine, lungs, and heart-lungs transplants are now considered standard medical treatment.

Tissue typing and immunosuppressive medicines, for example, have allowed for more organ transplants and a higher survival percentage for patients. The discovery of an immunosuppressant medication by Jean Borel in the mid-1970s was the most important development in this field. In November 1983, cyclosporine was licensed for commercial use.

Regrettably, the demand for organ transplants continues to outstrip the availability. However, as medical technology advances and more donors become available, the number of people living longer and better lives grows year after year.

In comparison to developed countries, India’s history and evolution of modern-day organ transplantation are much shorter. During the 1970s, the first kidney transplant was performed in India. Previously, it was limited to a few urban locations, but as the medical sector became more commercialized, kidney transplantation became more common as new facilities opened and qualified personnel became available. Increased transplantation surgery facilities led to a well-known kidney trade in India throughout the 1980s, which received widespread media attention around the world. Patients from all around the world began to travel to India for transplants from paid donors. This resulted in a kidney scam in India in 1991, which the World Health Organization also denounced. People began an unlawful enterprise known as ‘transplant commercialism,’ in which they sold kidneys both within their countries and to foreigners.

Poor individuals in Madras, Calcutta, and Bombay are increasingly selling their kidneys to wealthy Gulf Arabs, Singaporeans, and Malaysians. After considering the issue, the federal government formed a committee in 1991 to produce a report on the legal framework governing organ transplantation in India as a whole. The government took this action to control the practice of transplantation in India.

Human Organ Trafficking – Inhuman Business in Human Law

Human Trafficking

Organ trafficking, a profitable global criminal trade, is a less-discussed form of human trafficking among anti-human trafficking stakeholders due to its complex and sometimes covert nature. The more general thought of forms of human trafficking among public policy experts and general awareness efforts include trafficking in sex and/or work. Organ trafficking, on the other hand, occupies a vital position among transnational organized crime groups due to high demand and low enforcement rates.

Organ traffickers profit in the shadows, leaving only their damaging medical footprint behind. It exposes vulnerable communities, referred to as “donors,” and first-world beneficiaries, referred to as “recipients,” to exploitation and long-term health implications. Poor people usually go to extraordinary lengths to make a living, regardless of the consequences. For low-income families, the discovery of the black market organ trade appears to be a blessing in disguise. Poor people in many nations are willing to sell their bodily organs like kidneys for money. Since illegal organ trafficking preys on people’s desperation and the potential for large profits, it raises serious health and ethical concerns.

As previously stated, the bulk of those who sell their organs belongs to the most vulnerable members of society. For example, kidneys are sold for as little as $5000 in China and Pakistan, while brokers profit handsomely from the deals. The unlawful sale of organs leads to the exploitation of the impoverished by unscrupulous cartels or unlicensed business people in this respect. Because the transaction takes place in the shadows, the processes for harvesting organs may not always adhere to medical guidelines.

Laws governing Organ Transplantation and Organ Donation in India

Organ Transplantation

In 1994, India established the Transplantation of Human Organs and Tissues Act (THO), which aimed to make organ donation and transplantation more efficient. 

The following are the main provisions of the THO Act and the newly passed Gazette by the Government of India:

  • For living donation – It establishes who is eligible to donate without having to go through any legal hoops. Mothers, fathers, siblings, sisters, sons, daughters, and spouses are all permitted to give. Grandparents have recently been included in the list of first cousins in the new Gazette. The first cousins must show confirmation of their link through genetic tests and/or legal documents. If there are no first relatives, the beneficiary and donor must seek special approval from a government-appointed authorization committee and appear in front of the committee for an interview to verify that the motivation for the contribution is solely charitable.
  • Brain death and its declaration – It is defined by the following criteria:  Six hours apart from doctors, two certificates are necessary, two of which must be doctors nominated by the relevant government body, with one of the two being a neurology expert.
    In each state or union territory, an Authorization Committee (AC) and Appropriate Authority (AA) are formed to regulate transplant activity. Each has a distinct role to play, as follows:
  • Role of Authorization Committee –The committee has the responsibility of regulating the authorization process to approve or reject transplants between the recipient and non-first-degree relatives. The committee’s major responsibility is to guarantee that the donor is not exploited for monetary gain by donating their organ. The recipient and donor’s joint application is investigated, and a personal interview is required to convince the AC of the donor’s real motivation for donation and to verify that the donor is aware of the surgery’s potential dangers. The affected hospitals receive notification of approval or rejection by mail. Clause 9 Sub Clause (3), of Chapter II of the THO statute, governs the choice to accept or reject a donor.
  • Role of Appropriate authority – The goal of the Appropriate Authority (AA) is to regulate the removal, storage, and transplantation of human organs. Only after receiving a license from the authority hospital is allowed to engage in such operations. The removal of eyes from a donor’s dead body is not governed by such an authority and can be done at any location without the need for a license. The powers of AA include inspecting and registering hospitals for transplant surgery, enforcing the required standards for hospitals, conducting regular inspections of hospitals to examine the quality of transplantation and follow-up medical care of donors and recipients, suspending or canceling the registrations of erring hospitals, and investigating complaints for violations of the Act’s provisions. The AA grants a hospital a license for a term of five years at a time, with the option to renew it after that time. A separate license is required for each organ.


It can be concluded by saying that the rise in illegal organ trade is a threat to mankind’s religious, moral, and ethical values. The expanding illegal trade in human organs induced by the high prevalence of poverty, demand for human organs, and the widening of the black market has had an impact on the standards and permitted techniques of human organ transplantation. Even after the THO Act was enacted, India did not experience much change; this could be due to the law’s non-implementation, as neither illegal trade nor scandals have ended, nor has the number of donors who can help with social and medical issues increased. The idea of brain death, which is valued by doctors, has never been highlighted or pushed.

As a result, it is necessary to take steps to eliminate the vice. The policies should attempt to increase legitimate donations while discouraging the black market sale of organs. Notably, the globe is heading in the correct direction. Because of the growing number of people in need of organ transplants, policies have been implemented around the world to make it legal to donate rather than sell human organs. However, citizens, particularly those from underdeveloped nations, are forced to sell organs to affluent receivers due to high levels of poverty. Furthermore, the data suggests that a main driver of the growing illegal human organ trade is a strong demand for organs that exceeds availability.