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CHAPTER
II
AUTHORITY FOR THE REMOVAL OF HUMAN ORGANS
1.
(1) Any donor may, in such manner and subject to such
conditions as may be prescribed, authorise
the removal before his death of any human organ of his body for
therapeutic purposes.
(2) 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, of that human organ from the dead body of the
donor;
(3) Where no such authority as is referred to in sub-section (2) was
made by any person before his death but no objection was also
expressed by such person to any of his human organs being used after
his death for therapeutic purposes, the person lawfully in possession
of the dead body of such person may, unless he has reason to believe
that any near relative of the deceased person has objection to any of
the deceased person's human organs being used for therapeutic
purposes, authorise the removal of any human organ of the deceased
person for its use for
therapeutic purposes
(4)The authority given under sub-section (1) or sub-section (2) or as
the case may be sub-section (3) shall be sufficient warrant for the
removal; for therapeutic purposes, of the human organ; but no such
removal shall be made by any person other than the registered medical
practitioner.
(5) Where any human organ is to be removed from the body of a deceased
person, the registered medical practitioner shall satisfy himself
before such removal, by a personal examination of the body from which
any human organ is to be removed that life is extinct in such body or,
where it appears to be a case of brain stem death, that such death has
been certified under sub-section (6)
(6) Where any human organ is to be removed from the body of a person
in the event of his brain stem death no such removal shall be
undertaken unless such death is certified, in such form and in such
manner and on satisfaction of such conditions and requirements as may
be prescribed by a Board of medical experts consisting of the
following, namely:-
(i)
the registered medical practitioner in charge of the hospital
in which brain stem death has occurred;
(ii)
an independent registered medical practitioner, being a
specialist, to be nominated by the registered medical practitioner
specified in clause (i), from the panel of names approved by the
Appropriate Authority
(iii)
a neurologist or a neurosurgeon to be nominated by the registered medical practitioner specified in clause (i) from
the panel of names approved by the Appropriate Authority and (iv)
the registered medical practitioner treating the person whose
brain-stem death has occurred.
(7) Notwithstanding anything contained in subsection (3), where
brainstem death of any person less than eighteen years of age occurs
and is certified under sub-section (6), any of the parents of the
deceased person may give authority, in such form and in such manner as
may be prescribed, for the removal of any human organ from the body of
the deceased person.
4. (1) No facilities shall be granted under sub-section (2) of section
3 and no authority shall be given under sub-section (3) of that
section for the removal of any human organ from the body of a deceased
person, if the person 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.
(2) No authority for the removal of any human organ from 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.
5.
(1) In the case of a dead body lying in a hospital or prison
and not claimed by any of the near relatives of the deceased person
within forty eight hours from the time of the death of the concerned
person the authority for the removal of any human organ 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.
(2) 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 in sub-section
(1)
6.
Where the body of a person has been sent for post-mortem
examination -
(a)
for medico-legal purposes by reason of the death of such person
having been caused by accident or any other unnatural cause; or
(b)
for pathological purposes,the person competent under this Act to give authority
for the removal of any human organ from such dead body may, if he has
reason to believe that such human organ 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 human organ
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 human organs being used, for therapeutic purposes, after his death
or, where he had granted an authority for the use of any of his human
organs for therapeutic purposes after his death, such authority had
not been revoked by him before his death.
7. After the removal of any human organ from the body of any person,
the registered medical practitioner shall take such steps for the
preservation of the human organ so removed as may be prescribed.
8.
(1) Nothing in the foregoing provision 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 human organ from the body of a deceased person in accordance with
the provisions of this Act nor the removal of any human organ 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.
9.
(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 such manner as may
be prescribed, by the donor and the recipient the Authorisation
committees 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.
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