Bombay High Court
Miss. Sonia Ajit Vayklip And Anr vs Hospital Committee on 18 January, 2012
Equivalent citations: AIR 2012 BOMBAY 93, 2012 (3) AIR BOM R 376, (2012) 3 MAH LJ 351, (2012) 2 ALLMR 926 (BOM), (2012) 6 BOM CR 675
Author: Chief Justice
Bench: Mohit S. Shah, Roshan Dalvi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.2831 OF 2011
Miss. Sonia Ajit Vayklip and anr. ...Petitioners.
Vs.
Hospital Committee,
Lilavati Hospital & Research Centre and ors. ..Respondents.
Mr.R.A.Shaikh with M.M.Khan for the Petitioners.
Mr. Jay Kansara i/by Vidhi Partners for Respondent No.1.
Mr.G.W.Mattos, AGP .for Respondent No.2.
ig CORAM : MOHIT S. SHAH, C. J. AND
SMT. ROSHAN DALVI, J.
DATE : 18 JANUARY 2012
ORAL ORDER : ( Per Chief Justice)
In this writ petition under Article 226 of the Constitution, the petitioner No.1, a tribal lady from Chhattisgarh, has challenged the decision of the respondents herein refusing to grant approval for transplantation of her kidney to the body of her younger brother Deekap Ajeet Vayklip.
2. Respondent No.1 Hospital Committee of Lilavati Hospital & Research Centre, Bandra, Bandra (W), Mumbai by the impugned communication dated 9 November 2011 (Exhibit-G) held that the petitioner cannot be accepted as an appropriate donor on the ground that the petitioner No.1's verbal IQ (VIQ) was 56, Performance IQ(IQ) was 50 and Full Scale IQ (FSIQ) was also 50, whereas the average is between 80 to 100.
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3. During the pendency of the petition, we directed by our order dated 23 December 2011 that the petitioners' case may be considered by the State Authorization Committee under Director of Medical Education, Maharashtra State. By their report dated 4 January 2012, the Authorization Committee and the Chairman of the Authorization Committee and Director of Medical Education and Research, Mumbai have not granted permission to the petitioner No.1 for donating her kidney to her brother-Deepak Ajeet on the ground of mental status of the petitioner No.1 and also on the ground that the petitioner donor is suffering from Right kidney stones and Ureteric stones for which Lithotripsy and D.J. stenting has been done in July August 2011 and that ultra sonography done in July 2011 shows evidence of stone in right kidney and Ureter with D.J. Stent.
4. Today, the learned counsel for the petitioners has tendered affidavit of Dr. Bharat V. Shah, M.D., DNB (Nephrology) who is heading the medical team which proposes to undertake transplantation of kidney of the petitioner No.1.
5. The learned counsel for the petitioners has submitted that as regards the objection raised by the Authorization Committee that petitioner No.1 should be treated as mentally retarded person, there is no justification for taking such a view. It is submitted that this Court had already questioned the petitioner No.1 on 23 December 2011 and this Court had already recorded the reasons for prima facie taking a view that the petitioner is aware that she is donating one of her kidneys to her younger brother. It is submitted that petitioner No.1 is a tribal from Chhattisgarh and that considering her education and social background, ::: Downloaded on - 09/06/2013 18:05:32 ::: ASN 3 WPL-2831.doc she would not be in a position to answer the questions put by the Hospital Committee or the Authorization committee in the manner in which the committee members residing in Mumbai would expect a lady of her age to answer. It is submitted that merely on that ground petitioner No.1 could not be considered as mentally retarded person. Secondly, it is vehementally submitted that the petitioners have placed credible material on record proving that the petitioner No.1 (donor) is the elder sister of petitioner No.2 (donee). Hence nothing further was required to be done by the hospital committee or the authorization committee. It is submitted by the learned counsel for the petitioners that the object of the Transplantation of Human Organs and Tissues Act, 1994 is only to prevent commercial dealings in human organs and tissues and, therefore, the legislative scheme is that only in cases where the donor is not a near relative of the recipient as defined by the Act, the Authorization Committee and/or the Hospital Committee are required to make enquiry about the motive for donation of the human organ. Reliance is placed on the definition of the word "near relative" as provided in Section 2(i) of the Act. The said definition indicates that "near relative" includes brother and sister and therefore, petitioner No.1 being elder sister of petitioner No.2, there is no restriction under the Act against the donation of one of the kidneys of petitioner No.1 sister for petitioner No.2 brother for therapeutic purposes. It is submitted that no committee or authority has challenged the relationship between the petitioners. On the contrary in the latest report dated 4 January 2012 the Authorization Committee- respondent No.2 herein has stated as under:-
"Mr. Ajit Vayklip, father of donor-Ms.Sonia Vayklip has not given his affidavit about his consent for kidney donation by his daughter-Ms. Sonia to his son Mr.Deepak Vayklip".::: Downloaded on - 09/06/2013 18:05:32 :::
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6. The learned counsel for the petitioners has also heavily relied on the affidavit of Dr. Bharat V. Shah, M.D., DNB (Nephrology) indicating that there is no better suitable donor in the family and that there is 100% matching of tissue type of recipient-petitioner No.2 and petitioner No.1 donor who are brother and sister. It is also stated in the said affidavit that the risk of rejection is likely to be negligible and success of transplant very high. It is also indicated in the said affidavit that the transplant is the only option for survival of petitioner No.2 who is a young man. The affidavit further indicates that the Petitioner No.2 has no access to dialysis in his village and he cannot afford long term dialysis. As regards the observations made by the State Authorization Committee about the right kidney of petitioner No.1 having a stone, Dr. Bharat V. Shah. M.D., DNB (Nephrology) has clearly opined that there appears to be a tendency toward increased acceptance of donors with a history of kidney stones. The learned counsel for the petitioners as well as Dr. Bharat V. Shah have also invited our attention to the medical papers to show that the stone in the kidney of petitioner No.1 has been removed by using Lithotripsy. A reference is made to various medical Journals to show that there is tendency towards increased acceptance of donors with a history of kidney stones.
7 On the other hand, Mr. Mattos, learned A.G.P. has submitted that the petitioners have not produced permission of the Authorization Committee of the State of Chhattisgarh. Placing reliance on the decision of the Apex Court in Kuldeep Singh and another Vs. State of T.N. and ors. (2005) 11 SCC 122, it is contended that the Authorization Committee of the State where donor and donee are residing has to be satisfied that the transplantation of kidney would be in accordance with the provisions of the Act and the Rules framed there ::: Downloaded on - 09/06/2013 18:05:32 ::: ASN 5 WPL-2831.doc under. It is submitted that since the State Authorization Committee of the Chhatttisgarh State has not given any NOC, the petitioners have no right to claim the reliefs.
The learned counsel for respondent no.1 Committee has submitted that no interference with the assessment made by respondent Committees is called for. It is also submitted that many of the documents produced with the writ petition were not produced before respondent No.1 Committee.
8. Having heard the learned counsel for the parties, we have given anxious consideration to the rival submissions.
9. As the preamble indicates, the Transplantation of Human Organs and Tissues Act, 1994 is enacted to provide for regulation of removal, storage and transplantation of human organs and tissues for therapeutic purposes and for prevention of commercial dealings in human organs and matters connected or incidential thereto.
10. Section 3 of the Act provides that any donor may, in such manner and subject to such conditions as may be prescribed, authorize the removal, before his death, of any human organ or tissue or both of his body for therapeutic purposes in such a manner and subject to such conditions as may be prescribed.
Section -9(1) reads as under :-
"(1) Save as otherwise provided in sub-section(3), no ::: Downloaded on - 09/06/2013 18:05:32 ::: ASN 6 WPL-2831.doc human organ or tissue or both 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.
1(A) Where the donor or the recipient being near relative is a foreign national, prior approval of the Authorization Committee shall be required before removing or transplanting human organ or tissue or both:
Provided that the Authorization Committee shall not approve such removal or transplantation if the recipient is a foreign national and the donor is an Indian National, unless they are near relatives.
1(B) No human organs or tissues or both shall be removed from the body of a minor before his death for the purpose of transplantation except in the manner as may be prescribed.
1(C) No human organs or tissues or both shall be removed from the body of mentally challenged person before his death for the purpose of transplantation.
Explanation :- For the purpose of this sub-section,-
(i) the expression "mentally challenged person"::: Downloaded on - 09/06/2013 18:05:32 :::
ASN 7 WPL-2831.doc includes a person with mental illness or mental retardation, as the case may be;
(ii) the expression "mental illness" includes dementia, schizophrenia and such other mental condition that makes a person intellectually disabled;
(iii) the expression "mental retardation" shall have the same meaning as assigned to it in clause (r) of section 2 of the Persons With Disabilities (Equal Opportunities, ig Protection of Rights and Full participation) Act, 1995 (1 of 1996)] Sub- section (2) provides for authorization to be given by donor for removal of his organ or tissue after his death.
Sub-section (3) deals with a situation where donor is not near relative of the recipient, and provides that where the donor is not near relative of the recipient, human organ or tissue of the donor shall not be removed or transplanted without prior approval of the Authorization Committee.
Sub-section (4) provides for constitution of the Authorization Committee.
Sub-sections (5) and (6) provide that application for permission of the Authorization Committee is required to be made jointly by the donor and the recipient in such form and manner as prescribed. After holding an enquiry after satisfying itself that applicants ::: Downloaded on - 09/06/2013 18:05:32 ::: ASN 8 WPL-2831.doc have complied with the provisions of the Act and the Rules Authorization Committee is to grant permission for removal and transplantation of the human organ/tissue.
11. The Legislative scheme therefore, is that two types of cases are contemplated:
(i) donor to stranger:-
As far as this category is concerned i.e. when the donor and the recipient ig are not near relatives as defined by the Act, the removal and transplantation of human organ or tissue cannot be done without the prior approval of the Authorisation Committee appointed under sub-section (4) of Section 9 of the Act.
(ii) from donor to near relative:-
"near relative" means spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter".
Subject to the following three exceptions, no such approval is required from the Authorisation Committee for donation of a human organ or tissue to a near relative, because there would be no commercial element for such donations.
Even the donation to a near relative, there are three restrictions :-
(A) where either the donor or the recipient is a foreign national, ::: Downloaded on - 09/06/2013 18:05:32 ::: ASN 9 WPL-2831.doc prior approval of the Authorisation Committee is required.
(B) in case of a minor, no organ or tissue can be removed from the body of the minor before his death for the purpose of transplantation except in the manner as prescribed;
(C) in case of mentally challenged person, no organ or tissue can be removed from the body of the mentally challenged person before his death for the purpose of transplantation. Mentally challenged person is defined as having mental illness or mental retardation. The words mental illness and mental retardation are also explained in Explanation (ii) and (iii). The definition of mental retardation is same as is to be found in clause (r) of Section 2 of the Persons with Disabilities (Equal Opportunities, protection of Rights and Full Participation) Act, 1995 (1 of 1996) which reads as under:-
"(r) "mental retardation" means a condition of arrested or incomplete development of mind of a person which is specially characterised by subnormality of intelligence."
12. The question is whether in a case where both the donor and the recipient are near relatives as defined by the Act, can such persons resort to removal and transplantation of human organ or tissue without approaching the Authorisation Committee where the case does not fall under any of the three exceptions. Although theoretically in such cases approval of the Authorisation Committee would not be required, in order to ensure that a donor does not donate his organ or tissue to a stranger for commercial considerations, simply by alleging that applicants are near relatives, the Authorisation Committee will have to be approached to ascertain whether the donor and recipient are near ::: Downloaded on - 09/06/2013 18:05:32 ::: ASN 10 WPL-2831.doc relatives or not. That is why under sub-sections (5) and (6) of Section 9 of the Act the Authorisation Committee will have to satisfy itself that the applicants have complied with all the requirements of the Act and the Rules made thereunder. Once the donor and recipient are shown to be near relatives as defined by the Act and the case does not fall under any of the three exceptions, the Authorisation Committee has no power to make further enquiry about the motive of such donation, because in such cases there would be no commercial element.
13. As regards the question whether the petitioners are near relatives as defined by the Act, neither the Hospital Committee nor the State Authorization Committee have challenged the petitioners' case that they are near relatives; sister and brother. The petitioners have relied upon the Baptism Certificate of Petitioner No.1 and the mark list of her brother (the recipient) which show their parents to be one Urmila and Ajit. The petitioners have also produced the ration card of Ajit Vayklip showing the names of Petitioner No.1 and the donee as his children at Annexure-2 in support of their case that petitioner No.1 is the elder sister of the recipient, Deepak. The petitioners have also relied on the application made to the State of Chhattisgarh for the medical grant of Rs.2/- lacs. The recommendation made to the State of Chhattisgarh also indicates that petitioner No.1 is the sister of petitioner No.2. More than that the petitioners have relied on the affidavit of Mr. Bharat V. Shah, M.D., DNB( Nephrology) who has indicated that there is 100% matching of tissue type of recipient and donor who are brother and sister. The said Doctor, who is present before the Court, specifically states that such matching is to be found in case of persons who are near relatives and it is only in an exceptional case - one out of 10,000 that 100% matching is found in case of strangers.
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14. Our attention is also invited to observations made by the State Authorization Committee, wherein it is stated as under:-
"Mr. Ajit Vayklip, father of donor-Ms. Sonia Vayklip has not given his affidavit about his consent for kidney donation by his daughter Ms. Sonia to his son -Mr. Deepak Vayklip".
Mr. Ajit Vayklip father of the donor has filed his affidavit before the Hospital Committee and he has also filed affidavit in the course of the hearing today stating that his daughter Ms.Sonia is donating one of her kidneys to his son Deepak Vayklip".
15. In view of the above material, we have no hesitation in coming to the conclusion that petitioner No.1 is a near relative of petitioner No.2 and therefore, the petitioners' case is covered by Section 9(1) of the Act and therefore, the restrictions provided in Section 9(3) do not apply to the instant case.
16. Admittedly neither of the petitioners (donor and recipient) is a foreign national nor a minor, hence the case does not fall under exception (A) or (B).The question is whether the Hospital Committee and the Authorization Committee had any material before them to consider petitioner No.1 as a mentally challenged person. The Committees have not alleged any mental illness, but have specifically considered that petitioner No.1 is a mentally retarded person. We had already examined this aspect after putting relevant questions to petitioner No.1 (who has always remained present before the Court at all previous hearings and is also present today)to ascertain whether petitioner no.1 ::: Downloaded on - 09/06/2013 18:05:32 ::: ASN 12 WPL-2831.doc has a condition of arrested or incomplete development of mind of a person with subnormality of intelligence. After considering the answers given by petitioner No.1 to the questions put by us, and after considering the fact that Petitioner No.1 is a tribal lady who has studied upto 6th standard, it is not possible to consider petitioner No.1 as a mentally retarded person.
The father of both the petitioners has filed an affidavit before the hospital Committee and before this Court giving consent for donation of kidney by petitioner No.1 for transplanting it into petitioner No.2.
17. We may now consider the last issue whether the reliefs prayed for by the petitioners should be refused on the ground that the petitioners have not obtained NOC from the Authorization Committee of the Chhattisgarh State. The learned A.G.P. has vehementally relied upon the decision of the Apex Court Kuldeep Singh and anr. Vs. State of T.N. And ors. (2005) 11 SCC 122 in support of the contention that the Authorization Committee of the Hospital or the Authorization Committee of the State of Maharashtra are not required to consider the petitioners' case without their obtaining NOC from the Authorization Committee of the State of Chhattisgarh .
18. We have carefully considered the aforesaid decision of the Apex Court in Kuldeep Singh case. That was a case where both the donor and the recipient hailed from the State of Punjab and they were seeking to have one kidney of petitioner No.2 therein donated to petitioner No.1 in Chennai. That case did not pertain to near relatives. In fact, the observations made in the judgment clearly indicate that the ::: Downloaded on - 09/06/2013 18:05:32 ::: ASN 13 WPL-2831.doc Supreme Court was dealing with a case where donor and the recipient were not near relatives as defined by the Act. The Supreme Court also made it clear that the object of the statute is to prevent commercial dealings of human organs. Hence the Authorization Committee is required to satisfy itself that the real purpose of donor authorizing removal of the organ is by reason of affection or attachment towards the recipient or for any other special reason. Such special reasons can by no stretch of imagination encompass commercial elements. The Authorization Committee of the State to which the donor and recipient belong would be in a better position to ascertain the true intent and the purpose of the authorization to remove the organ and whether any commercial element is involved or not. They would be in a better position to lift the veil of projected affection or attachment and the so called special reasons and focus on the true intent. The burden is on the applicants to establish the real intent by placing relevant materials for consideration of the Authorization Committee and heavy burden lies on them to establish it.
19. All the observations, therefore, pertain to a case where donor and recipient are not near relatives. Therefore, in cases where donor and recipient are near relatives as defined by the Act, there need be no enquiry by Authorization Committee to ascertain whether there is any commercial element. Such enquiry is therefore, not at all required to be held in the case of near relatives.
20. In any event, although the petitioners had approached the respondent authorities to grant approval neither in their first reply dated 8 November 2011 nor the last report dated 4 January 2011 of the State Authorization Committee, any objection was raised about the non ::: Downloaded on - 09/06/2013 18:05:32 ::: ASN 14 WPL-2831.doc production of NOC from the Authorization Committee of the State of Chhattisgarh.
21. We appreciate that the Authorization Committee would theoretically be required to consider whether the donor and the recipient are near relatives. The applicants would, therefore, have to place some material before the Authorization Committee to enable the Authorization Committee to hold that the applicants are near relatives. As discussed earlier, in the present case the petitioners have placed before us sufficient material to hold that they are near relatives as brother and sister. Moreover, Dr. Bharat V. Shah who is member of the kidney transplantation team has stated before us that each day is very crucial for the life of petitioner No.2 who is undergoing dialysis.
22. Having regard to the facts and circumstances of the case and the urgency involved and also having regard to the fact that State of Chhattisgarh has also released the grant of Rs.2/- lacs in favour of the proposed kidney transplantation of the petitioner No.2, we are of the view that, relief prayed for by the petitioners, deserves to be granted.
23. In the result, the petition is allowed.
24. The impugned communication dated 8 November 2011 at Exhibit-G (Page 56) and the report dated 4 January 2012 of State Authorization Committee and the Director of Medical Education and Research are hereby set aside.
25. It is clarified that since petitioner No.1 is the elder sister of petitioner No.2(recipient), no approval of the authorization committee is ::: Downloaded on - 09/06/2013 18:05:32 ::: ASN 15 WPL-2831.doc required as contemplated under Section 9 of the Transplantation of Human Organs and Tissues Act, 1994.
26. The petitioners shall be at liberty to proceed with the removal of one Kidney of petitioner No.1 Ms.Sonia Ajit Vayklip for transplantation to Petitioner No.2 Deepak Ajit Vayklip therapeutic purpose.
27. We trust that all concerned shall promptly and expeditiously act to save the life of the donee, Deepak Vayklip.
CHIEF JUSTICE
( SMT. ROSHAN DALVI, J. )
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