Indian Transplant Newsletter Vol. III Issue NO.: 9 (June 2001)

Brain Death & Organ Donation Legal & Ethical issues



Was the hanging a suicide or was it really a homicide? Is it all right to retrieve organs from a young woman who has died under unnatural circumstances within 7 years of her marriage? What does the law have to say about it?

            Narrating his experience with a similar kind of case, a physician from one of the hospitals said  that as long as the case was registered as a medico-logical case, the police informed and all necessary procedures followed as laid down by the police there ought not to be any problem in retrieving the organs. During organ retrieval, it is required that all findings are meticulously recorded and hundred over to the forensic experts so that they can proceed with the post mortem. This was the procedure that was followed and no problems were encountered by the hospital nor were there any legal implications for the hospital. However, the hospital to which this young woman was actually brought encountered certain legal problems with going ahead with the retrieval. The hospital’s panel of lawyers referred to the law books that stated “since the young woman had died within 7 years of marriage of unnatural causes the legal implications were serious and permission from a magistrate or Tahsildar would be necessary under such circumstances”. Unfortunately, it being the weekend of general elections neither could be contacted. It was decided by the hospital that it would be better to tread cautiously and not retrieve the organs in such a situation.

            Under the Transplantation of   Human Organs Act 1994, there is a reference to just such a situation in chapter II – Authority for removal of Human Organs. In this chapter, section 6 states that “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 propose, 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 authorize 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.” It was felt that what the THO Act needed was to very clearly delineate he persons (police personnel or magistrate etc) who have the authority to give consent for organ retrieval in cases where death has occurred due to unnatural causes. This would remove any cause for confusion and ensure that organ retrieval can proceed smoothly after the legal formalities are fulfilled.

How to cite this article:
- Shroff S, Navin S. Brain Death & Organ Donation Legal & Ethical issues. Indian Transplant Newsletter Vol. III Issue NO.: 9 (June 2001)

How to cite this URL:
- Shroff S, Navin S. Brain Death & Organ Donation Legal & Ethical issues. Indian Transplant Newsletter Vol. III Issue NO.: 9 (June 2001). Available at:

  • Copyright © 2021. Published by MOHAN Foundation
  • Keywords: Legal, Ethical, issues