Anatomical Bequests & Posthumous Organ Donation

परोपकाराय फलन्ति वृक्षा: परोपकाराय वहन्ति नद्यः । परोपकाराय दुहन्ति गावः परोपकारार्थमिदं शरीरम् ॥

This is a well-known सुभाषित (subhāṣita) which translates to –

“Trees bear fruits for the benefit of others. Rivers flow for the benefit of others. Cows give milk for the benefit of others. Likewise, this body exists for the purpose of helping others.”

The idea of “paropkara” or “helping others” is essential to the survival of humanity, and it inspires many of us to act in a compassionate manner. A very literal means of abiding by this subhāṣita is posthumous (i.e., after death) organ donation or posthumous whole-body donation (i.e., anatomical bequests).

In fact, a query which frequents interactions with friends/family/colleagues is – “Can I bequeath (give away) my whole body or maybe select organs for the purpose of medical research or therapeutic purposes (transplant etc.) under my Will?”

This is, of course, possible and permitted by the law. However, there are some significant technicalities which should be considered.

The Law Surrounding Posthumous Organ/Body Donations

“Will” is a document which deals with disposition of property after the will-maker’s lifetime. The human body or the organs therein, are of course not property under law (or even otherwise). Hence, the law governing Wills, i.e., the Indian Succession Act, 1925, does not govern posthumous organ/body donations. There are separate laws for this purpose.

There are State-wise Anatomy Acts which regulate whole-body donations. For illustrative purposes, you may refer the Anatomy Acts of Maharashtra, Gujarat or Karnataka.

Whereas, there is The Transplantation Of Human Organs And Tissues Act, 1994 (THOT Act, 1994) to regulate organ/tissue donation.

There are minor technical differences in making posthumous organ donations and posthumous body donations. There are also minor technical differences between the formalities for a will and a document sanctioning anatomical bequests. In what follows, the attempt has been to highlight the key technicalities for a good practical implementation.

A posthumous organ donation must be by way of a written document (made prior to their death) wherein the donor unequivocally authorizes the removal of any organ of their body for therapeutic purposes. Such document has to be in presence of at least two witnesses, and one of such witnesses should be a “near relative” of the donor. Note that the requirement of near relative witness is not there for a Will concerning properties, but it is crucial under law for an organ donation. Hence, one needs to be cautious if a common document is made out for bequeathing properties and organ donation. What if someone dies without such a written document but had mentioned orally on multiple occasions of such intent or the document is made out but turns out to be technically erroneous? In such a case, if none of the near relatives have any objection to such donation then also it shall be perfectly legal for such donation to take place. For the nerd fraternity (of which I consider myself a proud member) – you will find these aspects in Sec. 3 of THOT Act, 1994, more specifically under sub-sections (2) and (3) thereof.

For posthumous whole-body donations (or anatomical bequests), the technicalities may consist of minor variations from State to State. Here, I have considered the Anatomy Acts of Gujarat (Sec. 8), Maharashtra (Sec. 5B) & Karnataka (Sec. 4A) to give a brief idea of the technicalities. In Gujarat and Maharashtra, the request for anatomical bequest can be in writing (anytime prior to death) or oral (at the time of the illness which caused death) – either way, in the presence of minimum 2 witnesses. However, in Karnataka, such anatomical bequest (if intended by the deceased) has to be in writing. Further, in Maharashtra and Karnataka, it is possible to make a whole-body donation without such written document but then, the deceased should not have objected to it before death (or had withdrawn any objection to this prior to their death), and of course there should be no objection to this from any near relatives as well. This is not possible under the Gujarat Act.

Softer but Crucial Facets to Organ/Body Donations

As we saw in most cases that legally the donation decisions can be left to the near relatives and if none of them object then the donation sails through. However, these decisions are very sensitive and emotional for the near relatives. This ought not to be left wholly upto them, if possible. And so, if one really wants to ensure that such posthumous donations do take place without inflicting much emotional turmoil on their near and dear ones, the better way of going about it would be to at least write it down in your Will (even if it may be technically off).

In addition, it is crucial to talk to your family about such a desire and ensure that they are on board with the same. Ultimately, the doctors are also humans and they would be hesitant to proceed with organ/body removal if the family is against it – irrespective of what the law says. In fact, informing the doctor about is also a good idea. It is generally also advisable to have your family doctor/physician as a witness to your will especially in cases where posthumous organ/body donations are enshrined in the will. If possible, one should also check with the medical establishments about the procedures so that after death, the organ removal happens in a timely manner and the funeral rites are not delayed beyond a reasonable time after death.

Of course, drafting a clear statement in the will pertaining to the anatomical bequests is the foundational requirement in ensuring the intentions are properly carried out. In fact, even the aforementioned aspects (consulting the family, the doctor etc.) should also be incorporated in the document to avoid unnecessary disputes and ensure that the facts are duly recorded.

Concluding thoughts

We must acknowledge that posthumous organ/body donations help humanity to progress and grow – whether used for research/education or for giving a better quality of life to someone who would otherwise be deprived of some fundamental biological facility. This write-up has been an endeavour to present my thoughts and invite the readers to put their thoughts on the subject so that any such step, if and when, taken by us, can be executed in an informed manner and with the least possible friction. Hope this article has served its intended purpose. Namaskar!