Delhi High Court - Orders
Mohd. Suhel Mia vs Union Of India & Anr on 14 January, 2019
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7/2019 & CM No.18/2019
MOHD. SUHEL MIA ..... Petitioner
Through: Mr Faran Ahmed and Mr Devendra
Kumar, Advocates.
versus
UNION OF INDIA & ANR ..... Respondents
Through: Mr Ripu Daman Bhardwaj, CGSC
with Mr T. P. Singh, Advocate for R-
1/UOI.
Mr Gautam Narayan, ASC, GNCTD
with Ms Shivani Vij, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 14.01.2019
1. The petitioner has filed the present petition impugning an order of the Appellate Authority (Respondent no.1) passed under the Transplantation of Human Organs and Tissues Act, 1994 whereby the petitioner's appeal against the order dated 07.12.2018 passed by the Delhi Organ Transplant Cell (respondent no.2) was dismissed.
2. The petitioner is a citizen of Bangladesh and is currently in India for availing medical treatment at Max Hospital, Saket, New Delhi. The petitioner is in urgent need of liver transplant. It is also stated that he is suffering from decompensated chronic liver disease along with a giant umbilical Hernia, impending rupture for which he requires urgent umbilical hernia repair, however, that procedure cannot be undertaken on account of his chronic liver ailment. The treating Doctors have, accordingly, advised the petitioner to undergo a simultaneous liver transplant with umbilical hernia repair on urgent basis.
3. The Max Hospital has also issued a certificate that the procedure advised are urgent and the petitioner is at risk of rupture of umbilical hernia.
4. The petitioner states that his wife is a diabetic and is, therefore, unable to donate her liver. His son who is aged about 17-1/2 years has volunteered to be the donor and in this context that the petitioner had sought the permission from respondent no.2. The petitioner's request was rejected by the respondent no.2 by the impugned order dated 07.12.2018.
5. In terms of Section 9 (1) (1B) of the Transplantation of Human Organs and Tissues Act, 1994 (hereafter 'the Act'), no human organs or tissues shall be removed from the body of a minor prior to his death except in the manner as may be prescribed.
6. Clause (g) of Rule 5(3) of the Transplantation of Human Organs and Tissues Rules, 2014 (hereafter 'the Rules') expressly provides that living organ or tissue donation by minors shall be permitted on exceptional medical grounds with prior approval of the Appropriate Authority and the State Government concerned.
7. Section 9 (1) (1B) of the Act and Rule 5 (3) (g) of the Rules are set out below:-
"9 (1) (1B) 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."
* * * * * "(g) living organ or tissue donation by minors shall not be permitted except on exceptional medical grounds to be recorded in detail with full justification and with prior approval of the Appropriate Authority and the State Government concerned."
8. Undisputedly, a minor can donate organs in exceptional medical circumstances. In the present case, the petitioner has made out a case for an urgent requirement of liver transplant. The only question that requires to be addressed is with regard to the risk to the minor and whether the circumstances are sufficient to make an exception within the provisions of Rule 5(3) (g) of the Rules.
9. The impugned order passed by respondent no.2 is an unreasoned order. The order passed by respondent no.1 (Appellate Authority) indicates that the Appellate Authority has not accepted the view that the present circumstances fall under the exception of Rule 5 (3) (g). However, the Appellate Authority has also not given any reasons for the same. In terms of Rule 5 (3) (g), the permission of the Appellate Authority and the Government of NCT of Delhi is necessary in order for the petitioner to receive the liver transplant from his son.
10. Considering that the petitioner's son is aged about 17-1/2 years (it is stated that he shall attain the age of majority on 22.06.2019) and considering that the petitioner's life is at risk, this Court considers it apposite to remand the matter to respondent no.2 to consider it afresh. One of the essential factors to be considered is the risk to petitioner's minor son if such donation is permitted. The risk in question is not only regarding the procedure but also the effect that such donation may have on his health in future. This Court is of the view that the said decision can be evaluated only by an Expert Body. Accordingly, the Director of All India Institute of Medical Sciences (AIIMS) is directed to immediately constitute a Board of two senior Doctors preferably one of whom is a specialised in liver and biliary sciences. The petitioner would be at liberty to present their case to the said Board. The said Board shall render its advice to respondent no.2 and respondent no.2 shall consider the same as well as the report submitted by Max Hospital, within a period of two working days thereafter and forward it decision to the respondent no.1. The respondent no.1 shall also pass their order within a period of one working day, thereafter.
11. List on 21.01.2019.
12. Order dasti under the signature of Court Master.
VIBHU BAKHRU, J JANUARY 14, 2019 pkv