Plea In Supreme Court Seeks Approval For Liver Donation By Man To His 3-Year-Old Cousin Who Is Overseas Citizen Of India
A petition has been filed in the Supreme Court seeking permission to allow liver donation by a person to his cousin, a 3 year old child who is suffering from a chronic liver disease.The authorisation committee under the the Transplantation of Human Organs and Tissues Act, 1994 denied approval for the liver donation citing the bar provided in Section 9.As per Section 9, only a "near relative"...
A petition has been filed in the Supreme Court seeking permission to allow liver donation by a person to his cousin, a 3 year old child who is suffering from a chronic liver disease.
The authorisation committee under the the Transplantation of Human Organs and Tissues Act, 1994 denied approval for the liver donation citing the bar provided in Section 9.
As per Section 9, only a "near relative" of the recipient can donate organs. The Act defines "near relative" as "spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter". Pertinently, a "cousin" is not included in the definition of "near relative".
It may also be noted that the patient and his parents are Overseas Citizens of India. Section 1A of Section 9 requires prior approval of the Authorisation Committee, where the donor or the recipient is a foreign national. The proviso to this provision reads as: “Provided that the Authorisation Committee shall not approve such removal or transplantation if the recipient is a foreign national and the donor is an Indian national unless they are near relatives.”
In this backdrop, the writ petition was filed in the Supreme Court, with the child (the proposed recipient) as the first petitioner and the proposed donor(aged 31 years) as the second petitioner. They sought for directions to allow the liver transplant in order to save the life of the first petitioner and protect his fundamental rights under Article 21 of the Constitution of India.
Considering the urgency of the issue, the petitioners filed a letter of urgency before the Supreme Court. Following that, CJI DY Chandrachud passed orders and the matter was listed before the Bench of A.S. Bopanna and P.S. Narasimha, on the very next day (November 1st).
In its order, the Court permitted the petitioners to file necessary application with the Authorisation committee and requested the committee to consider it while assembling on the same day itself. Today, when the matter was taken, the counsel for the hospital informed the bench that the donor is yet to be counselled. The bench adjourned the hearing to next week.
Since the child is in a state of serious liver failure, the hospital prescribed liver transplant to save his life. However, his parents were declared unfit for donating. While the mother is undergoing a pregnancy treatment, his father's blood group does not match with him. Under these circumstances, the child's cousin, petitioner no. 2, volunteered to donate their liver.
'Section 9 does not bar donation to overseas citizen of India'
The petitioners contended that Section 9 of the Act does not bar the donation of any Human Organ to the Overseas Citizen of India. It has also been argued that the said Section is violative of Article 21 of the Indian constitution that gives Right to Life and Personal Liberty to every person irrespective of his Citizenship.
Thus, apart from the above direction to allow the liver transplant, the petitioners have also prayed for:
- “For amending Section 9 of the Transplantation of human Organs and Tissues Act, 1994 to the extend it doesn’t bar any person’ to donate his/her Organs irrespective of his/her Nationality;
- For amending Section 9 of the extend it may specifically allow the Overseas Citizens to avail Organ donation in India.”
RAJVEER SINGH vs. UNION OF INDIA, Diary No.- 45541 - 2023