Bombay High Court: In a case wherein, the petitioner was a patient of Chronic Kidney Disease (CKD) Stage-V, but was not on dialysis, was denied registration by Respondent 2, Zonal Transplant Coordination Centre, Pune, for cadaveric kidney transplantation stating that he was not a case of end stage renal disease on maintenance dialysis, the Division Bench of G.S. Kulkarni and Advait M. Sethna, JJ., opined that the respondents should consider whether a separate registration facility could be provided to those patients, who in future would imminently require an organ transplant, so that when the need for a transplant arises, such list could be operated on proper medical certification and such patients could be recognized to receive an organ for a transplant.
Background
The petitioner was certified to be a patient of Chronic Kidney Disease (CKD) Stage-V, but not on dialysis and being a patient of CKD stage-V, due to polycystic kidney disease, he would require a kidney transplantation from a cadaveric donor, as he did not have a suitable donor in his family. Thus, the petitioner intended a registration for cadaveric kidney transplantation, but his application was not registered by Respondent 2, who after referring to the “Allocation Criteria for Deceased Donor Kidney Transplant Guidelines”, which provided for recipient registration, listing, and scoring system in the waiting list, refused to accept his registration on the ground that he did not comply with one of the guidelines, i.e., the patient should be a case of end stage renal disease on maintenance dialysis for more than three months on a regular basis.
The petitioner stated that in the near future, he would certainly need a kidney transplant and it was just a matter of time and when the need for kidney transplant became necessary, he should not be put to a prejudice and/or an unwarrented ordeal of being required to wait in a long queue for transplant, for want of timely registration.
The petitioner submitted that the right to life would include the right to receive an organ transplant, for which he needed to be registered so that when the urgency arises and on medical certification, he became entitled to receive a kidney. The petitioner stated that such a need was not recognized by the said guidelines, which could never override the provisions of the Transplantation of Human Organs and Tissues Act, 1994 (‘the 1994 Act’) and the requirement of Article 21 of the Constitution.
Analysis, Law, and Decision
The Court opined that there could not be two opinions that the guidelines in no manner would supersede the substantive legislation, i.e., the 1994 Act. Further, the Court also opined that the human need for an organ transplant was directly a facet of the right to life as guaranteed under Article 21 of the Constitution.
The Court stated that a situation could not be accepted that when any patient was in need of an organ transplant, which might not be immediate but was imminent and/or in a situation that the patient was immediately not on dialysis, however, it was certain that soon the need for a transplant would arise, considering the medical condition of the patient, such situation would also be required to be paid attention to by the respondents.
The Court opined that the object and intention of the 1994 Act was to provide for the regulation of removal, storage and 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 or incidental thereto. Thus, while recognizing the right to life of a patient, the provisions of the 1994 Act would be construed and considered in the context of these objects and intention.
The Court thus opined that the respondents should consider whether a separate registration facility could be provided to those patients, who in future would imminently require an organ transplant, so that when the need for a transplant arises, such list could be operated on proper medical certification and such patients could be recognized to receive an organ for a transplant. The Court stated that this would provide ease of procedure for such a category of patients and would obliviate their difficulties in having registration at the appropriate time and not after the patient gets critical or his medical condition deteriorates.
The Court opined that when the health and life at such stage of the patient itself was rendered delicate and worrisome, any procedure for such basic requirement of registration needed to be of absolute ease and comfort.
The matter would next be listed on 17-6-2025.
[Harshad Rohidas Bhoite v. State of Maharashtra, Writ Petition No. 3048 of 2024, decided on 30-4-2025]
Advocates who appeared in this case :
For the Petitioner: Uday Warunjikar with Jenish Jain and Dilip Pandharpate i/b. Siddhesh Pilankar for Petitioner.
For the Respondents: Neha Bhide, GP with P.J. Gavhane, AGP for State; Shehnaz Bharucha i/b. A.A. Ansari for Respondents 3 and 4.
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