Delhi High Court: In a petition seeking for a direction to the respondents to grant Petitioner 1, necessary permission to donate a part of her liver to her ailing father, Petitioner 2, Subramonium Prasad, J.*, considering that Petitioner 2 required an urgent liver transplant as he was in the end stage of liver disease, the Court permitted Petitioner 1 to donate a part of her liver to her father. The Court directed Petitioner 1 to undergo the procedure in a specialized centre like AIIMS or Respondent 3, where all detailed workup of Petitioner 1 to be done keeping in view of her safety. Further, the Court opined that the guidelines had to be laid down indicating the nature of exceptional medical grounds which could be adopted throughout the country by the appropriate authority and the State Governments and directed Respondent 1 to frame the guidelines within two months from 30-01-2024, under Rule 5(3)(g) of Transplantation of Human Organs and Tissues Rules, 2014 (‘2014 Rules’) for the guidance of the appropriate authority and the State Governments while considering an application regarding permitting tissue donations by minors.
Background
In an instant case, Petitioner 1 was born on 05-09-2006, and as of today, the petitioner was around seventeen years old. Petitioner 1’s father, i.e. Petitioner 2 was admitted to Dr. Rela Institute and Medical Centre, Chennai and was diagnosed with prolonged liver disease, that is non-alcoholic steatohepatitis- cirrhosis (NASH), end stage liver disease, which required urgent liver transplant. It was stated that the family was looking for a donor for liver transplant and Petitioner 1, had been found suitable for the said purpose. Thereafter, Petitioner 2 made a representation dated 28-06-2023 to Institute of Liver and Biliary Sciences, New Delhi (‘Respondent 4’) seeking permission for liver transplantation of a part of liver of his Petitioner 1, that is his minor daughter. However, no response was received from Respondent 4.
Since, no response was received from Respondent 4, Petitioner 2 put down his name on Cadaveric Donor waiting list of the King George Medical University, Lucknow. The petitioners also filed a writ petition, which was subsequently withdrawn.
Thus, the petitioner approached the present Court by filing the instant writ petition.
Analysis, Law, and Decision
The Court opined that the perusal of the affidavit provided by Respondent 3, showed that since there were no exceptional medical circumstances, that the case could be considered for urgent liver transplantation with a minor, therefore, approval could not be granted under the Transplantation of Human Organs Act, 1994 (‘the Act’). Subsequently, on 14-09-2023, Respondent 3 was directed to file an affidavit stating the instances of exceptional circumstances under which organs transplantation could be permitted under Rule 5(3)(g) of the 2014 Rules, read with Section 9(1)(b) of the Act.
Thereafter, the Court noted that it was stated in the affidavit that there were no specific instances or exceptional grounds mentioned and each case had to be seen and deliberated individually depending on the condition of the recipient/donor and the risk involved to the life of the donor. It was also stated in the affidavit that Petitioner 2 could explore the option of getting another donor or a swap donor or a deceased donor organ transplantation. Thus, the Court opined that this affidavit was not in compliance with the order dated 14-09-2023.
Thereafter, notice was issued on 17-10-2023, and accordingly the Court directed All India Institute of Medical Sciences (‘AIIMS’) to constitute a Medical Board to examine Petitioner 1’s medical condition and ascertain whether the minor donor could be permitted to donate a part of her liver to her father and the effects it would have on her health.
The Court opined that the perusal of the report provided by the AIIMS, showed that Petitioner 1 was healthy and could donate a part of her liver to her father within the criteria prescribed. It was also stated that a person of her age to undergo partial hepatic resection like a donation procedure with acceptable risk. The report also stated that there would be no subsequent problems in her quality of life barring standard complications which could even occur for a normal donor. Therefore, considering that Petitioner 1’s father required an urgent liver transplant as he was in the end stage liver disease, the Court permitted Petitioner 1 to donate a part of her liver to her father. The Court directed Petitioner 1 to undergo the procedure in a specialized centre like AIIMS or Respondent 3, where all detailed workup of Petitioner 1 to be done keeping in view of her safety.
The Court referred to Rule 5(3)(g) of the 2014 Rules and opined that it indicated that in exceptional medical grounds and with prior approval of the appropriate authority a minor could be permitted to donate live tissues and organs. Thus, the Court opined that the guidelines had to be laid down indicating the nature of exceptional medical grounds which could be adopted throughout the country by the appropriate authority and the State Governments and directed Respondent 1 to frame the guidelines within two months from 30-01-2024, under Rule 5(3)(g) of 2014 Rules for the guidance of the appropriate authority and the State Governments while considering an application regarding permitting tissue donations by minors.
[X v. Union of India, 2024 SCC OnLine Del 646, decided on 30-01-2024]
*Judgment authored by- Justice Subramonium Prasad
Advocates who appeared in this case:
For the Petitioners: Shantanu Singh, Ravi Sehgal, Divya Narayanan and Anuj Gupta, Advocates;
For the Respondents: Jaswinder Singh, Poonam Rohilla, Advocates; Siddharth Panda, Advocate; Mehak Nakra, ASC for GNCTD with Abhishek Khari, Advocate; Dr. Harsh Pathak, Shaveta Mahajan and Mohit Choubey, Advocates.
