Del HC | No complete prohibition in a minor donating an organ or tissue prior to attaining majority; Donation permissible in exceptional circumstances

Delhi High Court: Sanjeev Sachdeva, J. while addressing a petition with regard to a minor donating her liver to her father, held that,

” there is no complete prohibition in a minor donating an organ or tissue prior to attaining majority. Donation is permissible but in exceptional circumstances and in accordance with the rules.”

In the present petition, direction has ben sought to appropriate authority appointed under Section 13(1) of Transplantation of Human Organs & Tissues Act, 1994 for allowing the liver transplantation and permitting petitioner to donate part of her liver to her father who is suffering from and advanced stage of liver failure.

The doctor has also given a certificate suggesting that the transplantation should be done soon as possible.

Counsel for the petitioner contended that the petitioner needs no permission under theTransplantation of Human Organs & Tissues Act, 1994, in case of any relative, if the donor is not a minor.

Counsel adds that in terms of Rule 5(3)(g) of the Transplantation of Human Organs & Tissue Rules, 2014, living organs or tissues, donation by minor is not permitted except under exceptional medical grounds to be recorded ind details with full justification and prior approval of the competent authority.

Father of the petitioner is virtually at the last stage of the liver disease and in case transplantation is not done immediately, there is likelihood of the non-survival of petitioner’s father.

Also petitioner has voluntarily and without any force or coerce agreed to donate part of her liver to her father who is the sole earning member of the family.

In view of the complete nationwide lockdown in on account of COVID-19, there is no possibility of finding a donor in the near future.

Court’s Decision

Keeping in view the directions issued in Mohd. Suhail Mia in WP (C) No. 7 of 2019, whereby the Court constituted an expert body as to whether there could be any potential risk to the minor in donating part of liver.

Bench thus deemed it expedient to direct the Director of Max Super Speciality Hospital, Saket to immediately constitute a committee of 2 senior doctors

Petitioner would be at liberty to present her case before the said committee and the committee shall render its advice to the respondent and the respondent shall take a decision immediately.

Matter is to be listed on 03-04-2020 at 2.00 PM. [Anshita Bansal v. Secretary, Ministry of Wealth of Health and Family Welfare, 2020 SCC OnLine Del 494, decided on 01-04-2020]

One comment

  • I am Anshita Bansal. I reside in south Delhi. I was the petitioner in this case where my father was suffering from liver cirrhosis for the past 2 years approx. His blood group is O+ and due to the rare availability of this blood group we were not able to go for the cadaveric liver transplantation. In March 2020 my father was on ventilator because of increase in ammonia level, lack of oxygen level, effected kidneys and increase in blood sugar level. According to the doctors he needed liver transplantation and soon as possible. I was 17 years old at that point(start of April 2020 )and I would be turning 18 years old on 22nd May 2020 which is the legal age for organ and tissue donation in India. But due to the urgency, I decided to file a case in Delhi high court because my blood group matched to that of my father and I was the only eligible donor in my family. I got my test done and got it verified by many liver transplant specialist in various hospitals of Delhi and according to them, I was fit for donation. After the case was filed the honourable judge appointed a medical committee in MAX SUPER SPECIALITY HOSPITAL, SAKET, NEW Delhi. They checked my reports and had a conversation with me for only for 5minutes and decided that I am not “psychologically fit” for donation and mind you there was no psychiatrist or psychologist present in that committee. They wrote a letter stating that I was psychologically fit and after my lawyers questioned that letter in the court that replied by writing another letter stating that there was a misprint we wanted to write that “she is not physically fit and can never be an organ donor in her life”. Due to this letter, we lost our case in the court and after one month the next day of my birthday that in 23rd May 2020 I donated a part of liver to my father and according to the doctors of PSRI SUPER SPECIALITY HOSPITAL where we got this procedure done my liver for a perfect fit for my father. Now it has been 6 months since our operation me and my father are perfectly alright but there must be many people or children like me who must be struggling because of this law. We had to take a risk of my father’s life for that one month which was wasted by those doctors of MAX hospital who heartlessly misused their power and threw an illogical statement for my mental and physical state without considering my family issues and risk to my father’s life. I strongly protest against this.

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