High Court Asks Delhi Government To Decide Within Two Days, Minor's Plea Seeking Permission For Organ Donation To Ailing Father

The Delhi High Court on Monday asked the Secretary, Health of Delhi Government to consider within two days, plea filed by 17 year old minor, seeking directions on the Delhi Government and Institute of Liver & Biliary Sciences (ILBS) to permit him to donate part of his liver to his ailing father, who is suffering from advance stage of Liver Failure.

Justice Rekha Palli was of the view that instead of remanding the matter back to the medical board which had refused to grant the permission for transplant, the same must be considered by the Secretary Health, GNCTD who is the designated appropriate authority as per a memorandum issued by the Government.

"Instead of remanding the matter back to the board of Respondent no 2, it would be in the interest of justice that the matter is expeditiously and within two days considered by Secretary Health, GNCTD, which is also the designated appropriate authority," the Court said.

The Court also added that it will be open for the Secretary, Health to consider the fact that the case involves grave medical emergency and that the petitioner is about to attain age of majority i.e. 18 years within two months.

During the course of hearing, Senior Advocate Sanjay Poddar appearing for the Respondent suggested the Court to either send the matter as an appeal to the Board or to the Secretary, Health, which can grant approval or if authorized, may also constitute a committee in the matter.

"There shouldn't be any conflict of interest. Independent evaluation can be done," he submitted. 

While disposing of the plea, the Court directed the Institute of Liver & Biliary Sciences (ILBS) to forthwith forward the medical record of the petitioner to Secretary, Health. The Court added that it will be open for the petitioner to furnish additional documents to the appropriate authority.

Earlier, the Court had orally observed that merely because a person is a minor does not mean (s)he is ineligible to donate her/his organ under the Transplantation of Human Organs and Tissues Act 1994.

"What kind of order have you passed? Why should you want a man to die? At least apply your mind. Reject his application if he's not eligible. Just because he's a minor cannot be the ground. There is no absolute bar in the statute," Justice Palli had earlier remarked.

In the petition, it had been averred that both the petitioner's mother and elder brother had been denied permission to donate their organs on medical grounds. Further, permission was denied to the petitioner to donate a part of his Liver on account of him being of minor.

The plea, moved through Advocate Prasoon Kumar, arose out of the order passed by Deputy Head of Operations, ILBS and the competent authority, dated 28th August, 2021, refusing permission to the Petitioner to donate a part of his liver to his father.

"That as per the Transplantation of Human Organs and Tissues Act 1994 hereinafter called as 1994 Act, there is no complete prohibition for a minor to donate a human organ or tissue by a minor and a minor is also permitted to donate organ and tissue in a manner as may be prescribed by the government. Rule 5(3) (g) of Transplantation of Human Organs and Tissues Rules 2014, living organ or tissue, donation by minor is not permitted except under medical grounds to be recommended in detail with justification and prior approval of competent authority," the plea read.

It was therefore the petitioner's case that the impugned order passed by the authority shows non-application of mind on their part. 

Case Title: Saurav Suman through his mother v. GNCTD & Anr.