Bombay High Court
Vijaykumar Hariram Sahu vs The State Of Maharashtra on 27 September, 2012
Equivalent citations: AIR 2013 BOMBAY 17, 2012 (6) AIR BOM R 833, 2013 (2) MAH LJ 927, (2013) 2 ALLMR 362 (BOM)
Author: D.Y.Chandrachud
Bench: D.Y.Chandrachud, A.A.Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO.2328 OF 2012
1. Vijaykumar Hariram Sahu,
1473, Sadar Bazar, Sagar, Madhya Pradesh.
2. Balmukund Purshottam Sahu,
Dharmashala, St.Georege's Hospital Compound,
Mumbai-400 001. Petitioners
VERSUS
1. The State of Maharashtra.
2. The Secretary, Medical Education and Drugs
Department, Mantralaya, Mumbai.
3. The Chairman, Authorization Committee and
Directorate of Medical Education & Research,
St.George's Hospital Compound,
Near CST, Mumbai-400001.
4. The Medical Director,
Jaslok Hospital and Research Centre,
15, Dr.G.Deshmukh Marg, Mumbai-400 026. Respondents
Mr.Satish S. Mande for Petitioners.
Mr.Niranjan Pandit, AGP for Respondents.
CORAM : DR.D.Y.CHANDRACHUD AND
A.A.SAYED, JJ.
DATE : 27 September 2012
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JUDGMENT - (PER : DR.D.Y.CHANDRACHUD, J.) :
1. Rule. Counsel for the Respondents waive service. By consent, the Rule is made returnable forthwith. The writ petition is taken up for hearing and final disposal, by consent and on the request of learned counsel.
2. A delicate and sensitive issue arises before the Court in this case. It concerns the regulation by the State of the transplantation of human organs. The case traverses medicine, social ethics and law and has profound human implications. The noted German philosopher, Hegel, is attributed with the thought that "genuine tragedies in the world are not conflicts between right and wrong but conflicts between two rights." Whether the First Petitioner should or should not be allowed to donate a kidney necessary to save the life of the Second Petitioner is an agonising question falling in the same genre. Both the Petitioners are men of modest, if not humble means. One seeks to donate his kidney to the other, stating that they are bound by a bond of attachment and affection, arising from their family dwellings in Madhya Pradesh. The donor is a single parent with two daughters to look after, both below eighteen. The donee is suffering from end stage renal disease. The Authorization Committee and the Appellate authority have declined approval.
3. The Petitioners have in these proceedings under Article 226 of the Constitution of India challenged orders passed by the Authorization Committee constituted under the Transplantation of Human Organs and Tissues Act, 1994 (`the Act') and an order passed in appeal by the Appellate Authority of the State Government.
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4. The Second Petitioner is stated to be suffering from end stage renal disease and is being treated at Jaslok Hospital, Mumbai. The Second Petitioner was advised renal transplantation. The First Petitioner has agreed to donate a kidney to the Second Petitioner. The First and Second Petitioner do not fall within the definition of the expression "near relatives" as defined in Section 2(i) of the Act. The basis on which the Authorization Committee was moved for its prior approval is that though the First and the Second Petitioners are not `near relatives' as defined, they are related to each other. The fathers of the First and the Second Petitioners are stated to be brothers; the Petitioners claim to be cousins. The Hospital Authorization Committee of Jaslok Hospital is presided over by a former Judge of this Court and consists of seven other members. The Hospital Authorization Committee of Jaslok Hospital granted its approval, after an interview on 14 March 2012. The government of Madhya Pradesh sanctioned an amount of Rs.1.33 lakhs to the Second Petitioner on or about 25 January 2012 towards expenses of the transplantation procedure. The amount was paid over to Jaslok Hospital. The medical director of the hospital, in a communication dated 15 March 2012 addressed to the Chairperson of the Authorization Committee, forwarded duly completed forms pertaining to the donor and the donee, stating that the proposal had been approved by the hospital.
5. The Authorization Committee constituted by the State Government interviewed the First Petitioner, his elder brother and two minor daughters. The Committee noted that the wife of the First Petitioner died on 18 November 2011. The First Petitioner is 44 years of age. The elder brother of the First Petitioner and his two minor ::: Downloaded on - 09/06/2013 19:11:07 ::: 4 of 14 WP(L).2328.2012 daughters who were interviewed by the Committee, declined to grant their consent for the donation of a kidney to the Second Petitioner. As regards the Second Petitioner, the Authorization Committee noted that he has several other relatives namely, a brother and two sisters apart from his two sons and two daughters. The Committee noted that none of the near relatives of the Second Petitioner had come forward to donate a kidney. On the basis of this factual material, the Committee came to the conclusion that "the bond of love and affection could not be established." On this ground, permission for the donation of a kidney was declined.
6. In appeal, the Secretary of the Medical Education and Research Department of the State Government reiterated that the two daughters of the First Petitioner, who are dependent on him, had not accorded their consent and the parents of the donor did not appear before the Committee and have not submitted their consent. The Appellate Authority noted that the recipient had near relatives who had not come forward to donate a kidney. On this ground, it was held that the proposal did not meet the requirements of the Act.
7. The First Petitioner who is the proposed donor owns a flour mill and is stated to earn between a hundred to a hundred and fifty rupees each day. The Second Petitioner, the donee, carries on loading of goods in road transport vehicles and claims to earn between rupees five to six thousand every month. The donee resides at Bhopal.
8. The Transplantation of Human Organs and Tissues Act, 1994 is an Act "to provide for the regulation of removal, storage and ::: Downloaded on - 09/06/2013 19:11:07 ::: 5 of 14 WP(L).2328.2012 transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith." The Statement of Objects and Reasons accompanying the Bill in Parliament notes that there was a need for a comprehensive legislation for regulating the removal of organs from cadavers and living persons and prohibiting commercial dealings in human organs. In the absence of legislation, transplantation of organs had been impeded and there was a persistent demand for regulatory legislation on the subject.
In enacting the legislation, Parliament has borne in mind two principles of public interest. First, there is a need to allow transplantation as an instrument of saving lives. Transplantation has an important element in the protection of public health. Second, there was a need to ensure that trafficking in human organs does not take place by exploiting poverty, illiteracy and ignorance of a large section of Indian Society. In its regulatory provisions, the Act seeks to bring about a balance between the two competing principles.
9. Section 3(1) 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. Section 9 of the Act provides that save as otherwise provided in sub-section 3, no 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. Sub- section 3 of Section 9 stipulates that if any donor authorizes the removal of any of his human organs or tissues or both before his death under sub-
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towards the recipient or for any other special reasons, such human organ or tissue or both shall not be removed and transplanted without the prior approval of the Authorization Committee. Section 9 makes a clear distinction between the transplantation of an organ to a near relative and transplantation where a donee is not a near relative of the donor. The expression "near relative" is defined in Section 2(i) to mean spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter. Where the donor or donee are not near relatives, Section 9(3) contains a specific prohibition on the removal and transplantation of an organ or the tissue without the prior approval of the Authorization Committee. Sub-section 3 of Section 9 of the Act contemplates a donation of a human organ or tissue by a donor to a donee who is not a near relative "by reason of affection or attachment towards the recipient or for any other special reasons".
10. Rules have been framed in exercise of powers conferred by the Act. Those rules are known as the Transplantation of Human Organs Rules, 1995 (`the Rules'). Rule 6F lays down mandatory guiding principles to which the Authorization Committee is required to focus its attention. When the proposed transplantation is between individuals who are not near relatives, Clause (d) of Rule 6F stipulates as follows :
"6F. The Authorization Committee shall focus its attention on the following namely :-
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(i) that there is no commercial transaction between the recipient and the donor. That no payment of money or moneys worth as referred to in the Act, has been made to the donor or promised to be made to the donor or any other person. In this connection the Authorization Committee shall take into consideration -
(a) an explanation of the link between them and the circumstances which led to the offer being made;
(b) documentary evidence of the link, e.g. proof that they have lived together etc;
(c) reasons why the donor wishes to donate; and
(d) old photographs showing the donor and the recipient together.
(ii) that there is no middleman or tout involved;
(iii) that financial status of the donor and the recipient is probed by asking them to give appropriate evidence of their vocation and income for the previous three financial years. Any gross disparity between the status of the two, must be evaluated in the backdrop of the objective of preventing commercial dealing;
(iv) that the donor is not a drug addict or a known person with criminal record;
(v) that the next of kin of the proposed unrelated donor is interviewed regarding awareness about his/her intention to donate on organ, the authenticity of the link between the donor and the recipient and the reasons for donation. Any strong views or disagreement or, objection of such kin may also be recorded and taken note of."
::: Downloaded on - 09/06/2013 19:11:07 :::8 of 14 WP(L).2328.2012 Clause (f) of Rule 6F requires the Authorization Committee in the course of determining the eligibility of the applicant to donate, to personally interview the applicant. Minutes of the interview have to be recorded. Interviews of the donor are to be videographed. Clause (h) of Rule 6F requires the Authorization Committee to pass a reasoned order of rejection or approval. Clause (h) of Rule 6F reads as follows :
"6F(h). The Authorization Committee should state in writing its reason for rejecting/approving the application of the proposed donor and all approvals should be subject to the following conditions :-
(i) that the approved proposed donor would be subjected to all such medical tests as required at the relevant stages to determine his biological capacity and compatibility to donate the organ in question;
(ii) further that the psychiatrist clearance would also be mandatory to certify his mental condition, awareness, absence of any overt or latent psychiatric disease and ability to give free consent;
(iii) all prescribed forms have been and would be filled up by all relevant persons involved in the process of transplantation;
(iv) all interviews to be video recorded."
Under sub-clause (i) of clause 6F, the Authorization committee is to expedite its decision making process and use its discretion judiciously and pragmatically after recording reasons in all such cases where, the patient requires immediate transplantation.
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11. Where the donor and the donee are not near relatives, as in the present case, the Act mandates an application of mind to whether the proposed transplantation of a human organ or a tissue is motivated by a reason of affection or attachment of the donor to the recipient or by any other special reason. Affection or attachment is hence one, but not the only reason recognized by the Statute. Parliament did contemplate a donation of an organ or tissue for any other special reason. Those reasons have not been catalogued but have to be genuine and weighty. The object and purpose of the Act is to prohibit commercial dealings in the transplantation of human organs and tissues. Parliament was cognizant of the fact that unless the process was regulated, human beings in our society which suffers from poverty, illiteracy and ignorance, could be subjected to exploitation for the purposes of transplantation. Where the proposed transplantation is not between near relatives, the Authorization Committee is specifically under a mandate under Rule 6F(d) to evaluate and ascertain that there is no commercial transaction between the donor and the recipient. The Authorization Committee has, therefore, to consider the explanation which is furnished of the link between the donor and the donee, of the circumstances which led to the offer being made, documentary evidence of the link, reasons why the donor wishes to donate and can even look at old photographs to show the link between the donor and the donee. The Authorization Committee has to ascertain that no middleman or tout is involved. The financial status of the donor and the recipient has to be probed and in the case of a gross disparity, that has to be taken note of having regard to the object of preventing commercial dealings. Where there is a gross disparity in the financial status of the donor and donee, the legislature was cognizant of the need to ensure that this had not been used to suborn ::: Downloaded on - 09/06/2013 19:11:07 ::: 10 of 14 WP(L).2328.2012 the will of the donor. The views of the next of kin of the proposed unrelated donor are required to be ascertained in order to ensure that such persons are aware about the intention of the donor to donate an organ. Their views are also significant for assessing the authenticity of the link between the donor and the recipient and the reasons for the donation. Any strong views, disagreement or objection of such kin is to be recorded and taken note of. At this point it is necessary to clarify that the Rules do not confer an overriding veto on the next to kin of the donor. The Act balances the autonomy of the individual as a decision maker with the societal interest in protecting the concerns of the family.
Both the Act and the Rules, seek to bring about a healthy balance between the need for transplantation of human organs and tissues in order to save lives on the one hand and the public interest in ensuring that this does not become a facade for exploitation or for trafficking in human organs and tissues. The views of the next of kin are entitled to deference but this is not to suggest that the Authorization Committee, once a disagreement is expressed, would have no power to take an independent decision based on the best interest of the donor and the donee. Ultimately, the Authorization Committee has to take a judicious decision after considering all the facts and circumstances.
12. The State and District level Authorization Committees consist, among other persons, of experts from the medical field and members of civil society. Having regard to their broad based experience of medicine, society and life, the Authorization committees have to discharge their duties bearing in mind the social purpose implicit in the transplantation of human organs and tissues, while at the same time ensuring that this does not take place by abusing the bodily integrity of human beings.
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13. In the present case, the admitted position is that the donor and the donee are not `near relatives' as defined in Section 2(i) of the Act. The Authorization Committee took note of the fact that the donor and the donee are cousins. The fact that other relatives of the donor including his brother and his two minor children who have objected to the proposed transplant have not disputed the relationship between the donor and the donee, is a matter of some significance. Close relatives would be in the best position to depose to the link between the donor and donee. The Authorization Committee must, in the first instance, make its own inquiry with a view to establish the veracity of the claim of the donor and the donee that the proposed transplantation is motivated by affection or attachment or for any other special reason. The fact that the donor and the donee, though not `near relatives` as defined in Section 2(i) of the Act, are closely related to each other is an important circumstance which has a bearing on the issue is whether there were reasons to believe that the proposed transplantation is motivated by reasons of affection and attachment between the donor and the donee.
14. The Authorization Committee has erred in coming to the conclusion that a bond of love and affection could not be established. The Authorization Committee seems to have formed that view on the basis that : (i) the elder brother and the minor daughters of the donor had opposed the donation of a kidney by the donor to the donee; and (ii) the donee has his own relatives who have not come forward to donate a kidney. The existence of the objections of the relatives of the donor and the fact that other relatives of the donee have not come forward with a proposal for transplantation, would not, in our view, displace a case of ::: Downloaded on - 09/06/2013 19:11:07 ::: 12 of 14 WP(L).2328.2012 affection and attachment between the donor and the donee. These circumstances which were borne in mind by the Authorization Committee are relevant to the ultimate decision which the Authorization Committee has to take on whether to grant its approval. The Authorization Committee however, erred in holding that the circumstances on which it relied upon did not establish a bond of love and affection between the donor and the donee. The Appellate Authority has essentially relied upon the same factual material that was taken note by the Authorization Committee in confirming the decision.
15. In the circumstances, we are of the view that it would be necessary for the Authorization Committee to have a fresh look at the entirety of the proposal having regard to the provisions of the Act and the Rules as explained in the earlier part of the judgment. The Authorization Committee must, in the first instance, be satisfied that the proposal for transplantation falls within the parameters of Section 9(3) of the Act and is motivated by reason of affection or attachment towards the recipient or by any other special reason. Before it comes to the conclusion that this condition is fulfilled, the Authorization Committee must be satisfied on the basis of the documentary material that both the donor and the donee, as they claim, are closely related. The burden to establish this must lie upon the donor and the donee.
16. In deciding whether it should grant its approval, the Authorization Committee would have to consider all the facts and circumstances. Some of those are listed in Rule 6F(d) of the Rules to which a reference has been made earlier. The fact that the donor is a single parent and has two minor children to look after are certainly relevant considerations ::: Downloaded on - 09/06/2013 19:11:07 ::: 13 of 14 WP(L).2328.2012 which must be placed in balance by the Committee. Equally, the Committee must have due regard, if it comes to the conclusion that the donor and the donee are close relatives and that there is a bond of affection and attachment between them, to the need to save the life of a patient who is undergoing a serious medical condition. There is always a risk involved in a transplantation procedure. But that degree of risk may vary from case to case, having due regard to the medical condition of the donor. To what extent an organ donation would impinge on the life of the donor or on the extent, nature and quality of life of the donor-
has to be assessed. That must be balanced with the need expressed in the proposal for a transplantation to save the life of the donee. The need to save the life of the donee is a significant consideration not only from the perspective of the individual recipient and his family but also because there is a public health perspective in saving human lives. The Authorization Committee must realistically look at our societal mileu to understand why a married daughter of the recipient may not be in a position to donate her kidney to her father. These are indeed difficult decisions. We desist from taking that decision in the present case since we firmly believe that it is not the part of the function of the Court to take that decision. The judge cannot perform the role of God or an expert. Our jurisdiction is confined to ensuring that the scheme of the statute is implemented by administrative authorities, that their decision making process is fair and that their decisions are not vitiated by taking into consideration extraneous or irrelevant considerations.
17. Accordingly, we set aside the order passed by the Authorization committee on 9 April 2012 and the order passed by the Appellate Authority on 3 August 2012 and direct the Authorization Committee to ::: Downloaded on - 09/06/2013 19:11:07 ::: 14 of 14 WP(L).2328.2012 consider the matter afresh. In view of the urgency of the situation, we would request the Authorization Committee to take a decision as expeditiously as possible consistent with the need to hold a fair inquiry having regard to all the facets laid down in the Act and the Rules. The petition is accordingly disposed of. There shall be no order as to costs.
(DR.D.Y.CHANDRACHUD, J.)
ig (A.A.SAYED, J.)
MST
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