Section 43 in The Protection of Human Rights Act, 1993

Title: Repeal and savings

Description: (1) The Protection of Human Rights Ordinance, 1993 (Ord. 30 of 1993) is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of this Act.

Title: Short title, application and commencement

Description: This Act may be called the Transplantation of 1[Human Organs and Tissues] Act, 1994. (2) It applies, in the first instance, to the whole of the States of Goa, Himachal Pradesh and Maharashtra and to all the Union territories and it shall also apply to such other State which adopts this Act by resolution passed in that behalf under clause (1) of article 252 of the Constitution. (3) It shall come into force in the States of Goa, Himachal Pradesh and Maharashtra and in all the Union territories on such date2 as the Central Government may, by notification, appoint and in any other State which adopts this Act under clause (1) of article 252 of the Constitution, on the date of such adoption; and any reference in this Act to the commencement of this Act shall, in relation to any State or Union territory, means the date on which this Act comes into force in such State or Union territory 1 Subs. by s. 3, ibid., for "Human Organs" (w.e.f. 10-1-2014). 2 4th February, 1995, vide Notification No. S.O. 80(E), dated the 4th February, 1995, see Gazette of India, Extraordinary, Part II, sec. 3(ii). Extended to the Union territory of Jammu and Kashmir and Union territory of Ladakh by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10-2019).

Title: Definitions

Description: In this Act, unless the context otherwise requires,-- (a) "advertisement" includes any form of advertising whether to the public generally or to any section of the public or, individually to selected persons; (b) "Appropriate Authority" means the Appropriate Authority appointed under section 13; (c) "Authorisation Committee" means the committee constituted under clause (a) or clause (b) of sub-section (4) of section 9; (d) "brain-stem death" means the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3; (e) "deceased person" means a person in whom permanent disappearance of all evidence of life occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time after live birth has taken place; (f) "donor" means any person, not less than eighteen years of age, who voluntarily authorises the removal of any of his human organs for therapeutic purposes under sub-section (1) or sub-section (2) of section 3; (g) "hospital" includes a nursing home, clinic, medical centre, medical or teaching institution for therapeutic purposes and other like institution; (h) "human organ" means any part of a human body consisting of a structured arrangement of tissues which, if wholly, removed, cannot be replicated by the body; 1[(ha) "Human Organ Retrieval Centre" means a hospital,-- (i) which has adequate facilities for treating seriously ill patients who can be potential donours of organs in the event of death; and (ii) which is registered under sub-section (1) of section 14 for retrieval of human organs;] (hb) "minor" means a person who has not completed the age of eighteen years; 2[(i) "near relative" means spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter;] (j) "notification" means a notification published in the Official Gazette; (k) "payment" means payment in money or money's worth but does not include any payment for defraying or reimbursing (i) the cost of removing, transporting or preserving the 3[human organ or tissue or both] to be supplied; or (ii) any expenses or loss of earnings incurred by a person so far as reasonably and directly attributable to his supplying any human organ from his body; (l) "prescribed" means prescribed by rules made under this Act; (m) "recipient" means a person into whom any 3[human organ or tissue or both] is, or is proposed to be, transplanted; (n) "registered medical practitioner" means a medical practitioner who possesses any recognised medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and who is enrolled on a State Medical Register as defined in clause (k) of that section; (o) "therapeutic purposes" means systematic treatment of any disease or the measures to improve health according to any particular method or modality; 3*** 4[(oa) "tissue" means a group of cells, except blood, performing a particular function in the human body; (ob) "tissue Bank" means a facility registered under section 14A for carrying out any activity relating to the recovery, screening, testing, processing, storage and distribution of tissues, but does not to include a Blood Bank;] (p) "transplantation" means the grafting of any human organ from any living person or deceased person to some other living person for therapeutic purposes; 4[(q) "transplant co-ordinator" means a person appointed by the hospital for co-ordinating all matters relating to removal or transplantation of human organs or tissues or both and for assisting the authority for removal of human organs in accordance with the provisions of sections 3.] 1 Ins. by Act 16 of 2011, s. 5 (w.e.f. 10-1-2014). 2 Subs. by s. 5, ibid., for clause (i) (w.e.f. 10-1-2014). 3 Subs. by s. 4, ibid., for "human organ" (w.e.f. 10-1-2014). 4 Ins. by s. 5, ibid. (w.e.f. 10-1-2014)

Title: Authority for removal of human organs or tissues or both.

Description: 1[3. Authority for removal of 1[human organs or tissues or both].-- (1) Any donor may, in such manner and subject to such conditions as may be prescribed, authorise the removal, before his death, of any 2[human organ or tissue or both] of his body for therapeutic purposes. 3[(1A) For the purpose of removal, storage or transplantation of such human organs or tissues or both, as may be prescribed, it shall be the duty of the registered medical practitioner working in a hospital, in consultation with transplant co-ordinator, if such transplant co-ordinator is available,-- (i) to ascertain from the person admitted to the Intensive Care Unit or from his near relative that such person had authorised at any time before his death the removal of any human organ or tissue or both of his body under sub-section (2), then the hospital shall proceed to obtain the documentation for such authorisation; (ii) where no such authority as referred to in sub-section (2) was made by such person, to make aware to that person or near relative for option to authorise or decline for donation of human organs or tissues or both; (iii) to require the hospital to inform in writing to the Human Organ Removal Centre for removal, storage or transplantation of human organs or tissues or both of the donor identified in clauses (i) and (ii) in such manner as may be prescribed. (1B) The duties mentioned under clauses (i) to (iii) of sub-section (1A) from such date, as may be prescribed, shall also apply in the case of a registered medical practitioner working in an Intensive Care Unit in a hospital which is not registered under this Act for the purpose of removal, storage or transplantation of human organs or tissues or both.] (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 2[human organ or tissue or both] 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 1[human organs or tissues or both] 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 persons 1[human organs or tissues or both] being used for therapeutic purposes, authorise the removal of any 2[human organ or tissue or both] 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 2[human organ or tissue or both]; but no such removal shall be made by any person other than the registered medical practitioner: 3[Provided that a technician possessing such qualifications and experience, as may be prescribed, may enucleate a cornea.] (5) Where any 2[human organ or tissue or both] 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 2[human organ or tissue or both] 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 2[human organ or tissue or both] 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: 4*** 5[Provided that where a neurologist or a neurosurgeon is not available, the registered medical practitioner may nominate an independent registered medical practitioner, being a surgeon or a physician and an anaesthetist or intensivist subject to the condition that they are not members of the transplantation team for the concerned recipient and to such conditions as may be prescribed;] (iv) the registered medical practitioner treating the person whose brain-stem death has occurred. (7) Notwithstanding anything contained in sub-section (3), where brain-stem 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 6[human organ or tissue or both] from the body of the deceased person.] 1. Subs. by Act of 16 of 2011, s. 4, for "human organs" (w.e.f. 10-1-2014). 2. Subs. by s. 4, ibid., for "human organ" (w.e.f. 10-1-2014). 3. Ins. by s. 6, ibid. (w.e.f. 10-1-2014). 4. The word "and" omitted by Act 16 of 2011, s. 6 (w.e.f. 10-1-2014). 5. Ins. by s. 6, ibid. (w.e.f. 10-1-2014). 6. Subs. by s. 4, ibid., for "human organ" (w.e.f. 10-1-2014).

Title: Removal of human organs or tissues or both not to be authorised in certain cases

Description: 4. Removal of 2[human organs or tissues or both] not to be authorised in certain cases.--(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 1[human organ or tissue or both] 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 1[human organ or tissue or both] 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. 1. Subs. by s. 4, ibid., for "human organ" (w.e.f. 10-1-2014). 2. Subs. by s. 4, ibid., for "human organs" (w.e.f. 10-1-2014).