Kerala High Court Rejects Septuagenarian's Plea Against 'Brain Death', Says Parliament Recognized It Through Definite Medical Procedure

The Court passed the above order in a PIL moved by Dr S. Ganapathy who challenged the concept of brain death, argued that it was unscientific and certifying brain death violated Article 21 of the Constitution. He also challenged the constitutional validity of Section 2(d) and (e) of the Transplantation of Organs and Tissues Act 1994 (THOTA).

The Division Bench of Justice A.Muhamed Mustaque and Justice P. Krishna Kumar noted that Section 2(d) of THOTA defines brain stem death and Section 2 (e) defines the term deceased person. The Court further stated thus,

“The Court cannot now enter upon a controversy to define what is brain death or not. Parliament is the only authority to define what is brain death. Brain death in India is recognized through a definite medical procedure. The Court cannot judicially review Parliament's wisdom in assuming certain facts as correct for the application of law.”

The petitioner submitted that there was no specific length time before declaring a person as brain dead. He argued that several persons who were declared as brain dead had come to life and even gave birth on life support. He further stated that there was no uniform scientific assessment across the World for declaring someone as brain dead and that it was both factually and legally incorrect to certify a person as brain dead.

The Court acknowledged instances of brain dead patients being kept on life support but observed that it does not challenge the concept of brain death. It also stated that there are instances where persons who have declared as brain dead have come to life due to misdiagnosis or recovery from deep comas.

However, the Court added, “However, these cases do not necessarily challenge the concept of brain death but rather demonstrate how medical intervention can sustain bodily functions temporarily.”

The Court observed that the Parliament defined brain stem death in THOTA. The Court noted that Section 2 (d) defines brain stem death as a stage where all the functions of the brain have permanently and irreversibly ceased. It noted that Section 2(e) defines a deceased person as one whose life signs permanently cease due to brain-stem death or in a cardio-pulmonary sense. The Court noted that the procedure for procuring organs after being declared as brain dead is also given in Section 3.

The Court thus observed that Parliament legally and factually acknowledged brain stem death by defining it in THOTA.

The Court thus concluded that it cannot review brain death since the Parliament has already recognized it through THOTA.

Court stated, “Therefore, the Court's hands are tied. Parliament, in its wisdom, recognizes brain death through a definite medical procedure. It signifies that brain death is recognised in India, and the concept of brain death cannot be reviewed by the Court.”

As such the writ petition was dismissed.

Petitioner argued in person.

Advocates Mini Gopinath, AJ Varghese, A Ahzar and Nandeeda Fatima argues for the respondents.

Case Title: Dr.S.Ganapathy V Union Of India

Case No: WP(C) 2449/2021

Citation: 2025 LiveLaw (Ker) 95

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