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Need of Organ Donation-A Jurisprudential Study in Today’s Context (By - Advocate Surabhi Ajay Tolani & Dr. Shahista S. Inamdar)
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Article Details
Need of Organ Donation-A Jurisprudential Study in Today’s
Context
Authored By - Advocate Surabhi Ajay Tolani
And
Co-Author- Dr. Shahista S. Inamdar
(I/C Principal
Navjeevan Law College, Nashik)
1.
Introduction:
The Vaishali Chodnekar, Managing Director of the YMC
Organ Donation and Transplant Foundation[1]
once said that, there is no story, no hope, no transplant without an organ donor.
However, when there is an organ donor, Life emerges from Death, Sorrow
transforms into Hope, and a terrible loss becomes a gift.
The
very less number of Organ Donation rate in India is a very serious issue now a
days specially during the Covid Pandemic. As per the recent survey made by the
Government of India 1,06,560 number of men, women, and children are on the
national transplant waiting list, 17 people die each day waiting for an organ
transplant, at every 9 minutes another person is added to the transplant
waiting list.[2]
With advancements in surgical techniques, organ preservation, and
pharmaco-immunologic therapies, organ transplantation has become a critical
pathway in the management of severe organ failure worldwide. The majority of
organs are obtained from deceased donors following brain death; however, a
significant number of organs are obtained from live donations, and a
significant number can also be obtained from non-heart-beating donors.
The Organs are the vital part of the Human Body. No ordinary
man can imagine his life with any physical abnormality.[3]
Many tries to keep them very fit and fine to live healthy life. In this Article
the researcher wants to connect the Importance of Human Organ with some
jurisprudential theories by highlighting the various views of various
philosophers in various Schools of Jurisprudence. Moreover, researcher by this
article wants to spread an awareness
amongst people to donate the Human organs to help the
needy one.
2.
Views
Of Different Schools Of Jurisprudence:
2.1 Natural Law School:
The entire human right philosophy is an outcome of the
principle of Natural Law School. Various philosophers give their opinion
regarding the Importance of the Human Organs.
·
According to the
Aristotle, Man is a part of the nature. Natural Law school is based on
'reason'. On his part, Aristotle (384-322 BC) saw nature as a potential on
creation found in specific objects and striving at a specific goal.[4]
·
The Stoics,
who studied the cultivation of self-control and fortitude as a way to resolve
negative feelings, connected existence with rationality. Aristotle claimed that
rationality rules all aspects of the world and that human beings are similarly
ruled by rationality. We then claimed that individuals work 'naturally' as we conduct
their lives in line with reason. Cicero agreed with the contributions of these
thinkers as he claimed that design provides the laws that human culture will
abide by and that such laws should be found through intention.[5]
·
Cicero said that, 'The law is right reason'. Cicero agreed with
the submissions of these philosophers when he argued that nature provides for
rules that human society should live by and that these rules could be
discovered by reason.[6]
·
St. Thomas Acquinas believe that supremacy of law attains common good,
concept of justice carries with respect for the rights and other, it is
complete virtue that produces good of individual as well as the society.
According to Thomas Acquina preservation of life has highest value.[7]
A person sacrifices his life by donating organ is
influence of natural law philosophy. The Doctrine of 'Live and Let Live' is
basic of this organ donation law; and also basic philosophy of natural law,
because right to life, respect the dignity of human beings and secured the
universal human right is a part of natural law philosophy. Thomas Aquinas
categorizes the rule into the rule of divine, universal justice, moral law, and
human justice.[8]
The question of what is just or unjust law, and how we are supposed to react to
unjust law, is viewed through the lenses of philosophers who have been
confronted with these issues in generations past. In addition, we would look at
the sum of natural law by symbolic definitions – social contract,
power-separation, liberty and basic human rights. And finally, we may find some
of the arguments that contradict the theory of natural justice.
·
Grotius firmly believes that man by nature is peace loving and
desired to live according to the decades of reason.[9]
·
According to John
Locke, purpose of law is to protect the natural right of man, right to
life, liberty and property is necessary for well-being of the individual.[10]
·
According to Rousseau,
the state and the law made subject to the general, law should confirm with
"general will" of the people.
·
Kant believe that, law is the best result of human wisdom
acting upon human experiences for the benefit of the public.
·
According to Stammler,
Just law was the highest expression of man's social life and aims at
reservation of freedom of individuals.[11]
·
According to John
Rawl, everyone respect for rights of others which is the primary goal of
justice. Rawl’s Idea considered equality of opportunity into account the
initial social and cultural disabilities of an individual.[12]
·
Kohler, give an important to the "inner impulse" for
reasonable form of life.
·
Fuller, given importance to the internal morality of law and
believe law and morality are necessarily co-related like the thinking of H.L.A.
Hart.[13]
Natural Law school is based on principles of human rights
which are universally applicable. Justice and morality are two pillars of
natural law. natural law given importance to the fundamental rights such as
justice, equality, Liberty, paternity, brotherhood etc.
Organ donation law recognize the consent of organ donor
without coercion, these human body organs may be used to save the lives of
people or improve quality of life of human society which provides "Right
to life" including Right to health.
The person has legal right to object on organ donation
before his death.
·
According to Kant-"
Person heads off free will and he can decide what should be done in specific
circumstances, he is responsible for his own action."[14]
"Every man born free", so every person can
justify himself with his own mind.
·
According to Marshall
(1996) - A view of " live and let live" include someone allow to
remove once organ for financial reward for money or someone saving life. both
are considered as valuable in human society.
'Right reason’s shows the path of sacrifice for others,
justice is nothing but respect for other’s rights.
·
St. Augustine
(354-430): St. Augustine concluded that
our human life was irredeemably polluted by original sin.[15]
He rendered a difference between the City of God and the City of Man. Although
the City of God relates to the performing of the will of Christ, the City of
Man symbolizes the continuation of sin. This divided the rule into three
groups: lex temporalis, lexnaturalis and lexaeterna. On his part, Aquinas
classified the rule into four groups: divine law, eternal law, natural law, and
human law. Next to him, the rule would be only for the greater good.
Nevertheless, if such a statute became unfair, it became worthless to be
considered a rule. Therefore, the term lexinjusta not estlex[16]
(unjust legislation is not rule) is used to refer such unfair statute.
Natural law recognizes equality, and 'inner impulse'
which is part and parcel of donation of human organ laws. Right to life’s
concept was used in Natural law theory which also includes the organ donation
to the needy one. It is needed to establish the equitable legal system of human
body donation in India with philosophy of natural law.
2.2. Historical School:
·
According to Burke
law is an expression of common belief, fits and practices of the community. The
role of custom and traditions are important in growth of law.
·
According to Pollock
Law based on traditions and customs.
·
According to Savigny
customs, traditions, culture and sentiments of people is the principal of law.
In his "Volksgeist" theory he expresses view that law is
product of people spirit or general conscience of people. Law grows with the
growth of society; law grows with nation.[17]
·
According to Hugo law
is the outcome of habits and traditions of the people.[18]
·
According to Vinogradoff
law is an expression of the general will of the people.[19]
Organ donation law faces challenges in the aspects of
moral, cultural, religion, death ceremonies as a part of religious aspect.
The problem of shortage in supply of human organ is
closely related with religious, traditional and cultural aspects.
Gift of organs of human body is related to wheel or
common conscience of the people like as “Volksgeist" philosophy of
Savigny.
There are huge customary and traditional obstacles in
donation of human organs.
2.3 Religious Aspects:
Many religious beliefs ought to be taken into
consideration, because faith plays a very significant role in people's actions
and therefore influences how they speaks about organ donation and how they
respond to organ donation. Only few of the general views of religious groups on
donation will be highlighted in order to indicate their importance in the
present context. They should assume that there would be no clear viewpoints on
rewarding a donor, although it might be necessary to derive a viewpoint from the
general patterns in thought.
The Japanese religion of Shinto has a religious
doctrine directly against organ donating, harvesting and transplantation.[20]
Such actions are considered to be spiritually dirty, and therefore organ
donations and transplantations are almost non-existent in Japan. Throughout
2000, only eight sets of kidneys were collected from deceased donors with the
permission of the families. The downside to this strategy is that Japanese
patients are "organ tourists;" they go abroad to purchase kidneys.[21]
A short overview about few faiths reveals how diverse
theological beliefs on organ donation are and how the adherents of each faith
perceive donation. As suggested, people's opinions on certain facets of organ
transplantation are decided, or at least affected, by religious beliefs.
·
Buddhism-
Buddhists believes that the death is not disaster, but
mere changed consciousness. It means Buddhism allows donation of human organs.
Buddhism views life as a continuum: once the cognitive cycle of mind-brain has
passed into death, the divine phase begins.[22]
Death is not treated as a tragedy, but rather a shift of conscience. Thus,
harvesting the organs of a donor and using enormous resources to insert these
organs into another body to sustain existence looks to a Buddhist as an act of
self-delusion, which might suggest denial of one's divine nature.[23]
Clarity of mind is important in the cycle of death because it decides the
consistency of one's next life. Cutting the body of the donor can be unsettling
throughout the evisceration process. Buddhists, therefore, do not condemn organ
donation, but neither do they support it.
·
Hinduism –
Hindu religion also not prohibited from donating human
organs because they believe that it is final order of God.
Hindus are not forbidden from sacrificing organs under
their religious rules. It's an independent choice. There is little about the
Hindu faith that suggests that sections of people, deceased or alive, should
not be used to ease the misery of others. The rituals performed upon death
include the destruction of the preserved corpse in the presence of the kin.
some Indians, however, do not remove organs from the corpses. Yet social
practices are not the sole explanation why Indians do not donate organs.[24]
Donation i.e. Dan’s are considered to be very
pious thing amongst Hindus. During the Monarchial periods like Ramayana’s and
Mahabharata’s era the Donations were considered to be the essence of once’s
life. The Vedas are also of the view that the one should divide his money into
three categories. The first one for the present expenses, the second one for
the future and medical expenses and the last one for the donation purposes.
Karna is considered to be the best donor amongst all. Donating the organ would
definitely be the great pious donation which saves the life of many ones.
·
Christianian –
There is little conclusive evidence about the role of
Christianity in organ donation. Europe and the United States, which are
predominantly Christianian states, tend to have well-established
transplantation systems, higher rates of donation, and populations with
favourable attitudes toward donation. Evidence suggests that the Christian
faith does not play a significant role in willingness to donate, and that it is
more of an individual matter.[25]
In terms of what is known about the role of the Christian
faith, research suggests that rather than religious teachings, it may be the
strength of religious belief or perhaps conservativeness of belief that acts as
a barrier to donation. According to research, interpreting one's relationship
with God is more likely to be cited as a barrier to donation than interpreting
religious teachings.
These barriers may be more significant for Black Africans
and Black Caribbeans than for Whites, with bodily integrity being a
particularly significant barrier that transcends religious beliefs.[26]
The question as to whether Christians can accept rewards
for any organ donation has not yet been fully answered. In the absence of a
guiding view, individual Christians are left without an authoritative teaching
on how to approach the subject of receiving organ donation rewards.
·
Islam –
Islam means peace, surrender or submission to Allah's
will - Allah is the one "giving life and ending it". The Quran is not
for or against organ donation. Islam as a religion originated in
seventh-century Arabia. Since then, religion has become a faith with
approximately 1,000 million followers spread throughout the world. In South
Africa, Islam is a minority, but seen in the context of Africa, it enjoys some
40 % of the total population of the continent. Muhammad is the recipient of the
Holy Scripture of Islam called the Holy Quran.
Allah said: "Breaking a dead person's bone is equal
to breaking it while that person is alive". Because of this writing, some
Muslims are questioning the opening up of a person's body to remove organs.
However, the Shariah, the principal source of Islamic rule, allows such acts
though they are beyond theological interpretations if it is in the interests of
an individual. for example an incision can be rendered on a pregnant woman in
order to save the infant. Therefore, if any organ may profit from the
exclusion, it is permissible, except in specific criteria. It must be the best option
to cure the disease; the efficacy of the transplantation must be strongly
probable but the patient or the relatives must have consented to it.[27]
Most Muslims even comply with the living sacrifice of a
kidney from one Person to another, as the Quran stipulates: "Aid one
another in righteousness and piety."
Tradition and custom is recognised by Article 13 (3) as
law. In India generally custom, tradition of religion is favour with organ
donation. But unfortunately, we are not able to bring awareness in the people
and inspire them to donate the human organs. So, it is the situation due to
lack of awareness that shortage of donation of organs. While it is important to
ascertain the opinions of various faiths on organ transplantation, it is not as
straightforward to decide their stance on the donor's payout. Within the
previous pages, a few deviations were rendered from Christian and Islamic
values. Aside from the moral considerations of a civil rights-based community,
though, personal liberty will always be valued. In other words, after informed
consent has been given, the individual must be allowed to donate or receive a
reward for a donated organ, justified solely on the basis of his or her
autonomy and personal belief system. Autonomy is doing what's right, not
because others think it's right. Because you can justify this by means of your
personal and freely chosen and justified view of life, it exercises control
over your own actions in terms of your norms. The risk that the donor will take
is his or her own, not the physician or the ethicist. When one wishes to donate
an organ on an independent basis, i.e. voluntarily, rationally and
respectfully, the choice will be honored. The choice to take funds for organ
donation will be assessed and viewed in the same way.
Marshall[28]
et al. promote a "live and let live" approach. Whether someone wants
to require the organ to be withdrawn for financial re-entry, let them; if
someone requires funds and sells an organ, it supports him or her and becomes
life-saving to the receiver. Gill and Sade remind all anti-donor critics that
there is another side to organ transplantation: people are waiting for organs,
especially kidneys, people who will live if they get the organ, if they don't,
will die, or at least suffer needlessly. Those would then find the whole image
and not only the condition of the donor. Always hold in mind that until now, it
has not been altruistic to inspire donors to contribute.
2.4.
Sociological School:
Law is an instrument of social progress and serving the
needs of the society.
·
According to
Ehrlich Purpose of law was attainment of social justice.[29]
·
According to
Friedman Law is bases on social convention.
·
As per Doctrine of
social Solidary of Duguit 'Each Individual cannot fulfill his own
needs'. The ultimate end of all human activities is to ensure the
interdependence of men.[30]
·
Duguit pointed out that "Law is a rule which men obey not
by virtue of any higher principal but because they have to live as members of
society",[31]
it is most important that brings mutual Co-operation and mutual interdependence
between individuals’ group and societies.
·
According to the Roscoe
Pound Law made secure private public and social interests.[32]
Donation of organ is the need of individual as well as
society and part and parcel of social welfare. The organ donation law made with
challenging needs of society; the law secures the Interest of public at large.
Law is one of the parts of the social progress. organ donation is based on
secure social interest. It is needed that Doctrine of the "gift of
life" concern with society at large. Various Non-government organizations
and governmental departments take efforts to spread awareness in public about
donating of human organ. But these efforts by the government are not sufficient
and more efforts are required to be made regarding this.
Article Information
Need of Organ Donation-A Jurisprudential Study in Today’s Context (By - Advocate Surabhi Ajay Tolani & Dr. Shahista S. Inamdar)
Authors: Advocate Surabhi Ajay Tolani, Dr. Shahista S. Inamdar
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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