Supreme Court Allows Man To Donate Liver To 3-Year-Old Cousin Who Is Overseas Citizen Of India; Says Order Won't Be Treated As Precedent

The Supreme Court recently allowed liver donation by a person to his cousin, a 3-year-old child who is suffering from a chronic liver disease, while also making it clear that the instant order will not act as a precedent for any other case.

The Court's interventionn came after authorization committee under 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”.

The problem arose because the patient and his parents are Overseas Citizens of India and Sub-Section 1A of Section 9 of the Act requires prior approval of the Authorization Committee, where the donor or the recipient is a foreign national.

Under these facts and circumstances, the present writ petition was filed seeking for directions to allow the liver transplant by the donor, also second petitioner, in order to save the life of the Child (first petitioner) and protect his fundamental rights under Article 21 of the Constitution of India.

Previously, on November 01, the Court permitted the petitioners to file the necessary application with the Authorisation committee and requested the committee to consider it while assembling on the same day itself.

Thereafter, on the very next day, the counsel for the hospital informed the Bench that the donor is yet to be counselled. Thus, the matter was adjourned.

Court’s Observations

The Court, after examining the report of the authorization Committee, noted that a detailed exercise has been undergone regarding two aspects. First, the relationship between the petitioner No.1 and the petitioner No.2 and second, the intention of the latter for agreeing to be a donor.

“In that regard from the DNA test, it has been established that the petitioner No.2 is related to the petitioner No.1.,” held the Court.

It is important to note that in the petition, it was contended that petitioners’ parents are unfit for donating. While the mother is undergoing a pregnancy treatment, his father's blood group does not match with him.

Addressing the same, the Court noted that though, in the report, specific reasons have not been disclosed as to why the parents have not donated the liver, however, the court exempted the parents given that there is an appropriate donor.

“Though specific reasons have not been disclosed, it would be appropriate to take note of the sentiment of the mother of the petitioner No.1 and in that regard, exempt the parents in any event since in the instant case there is an appropriate donor who is a relative and since this Court is also satisfied with regard to the bona fides in this case and in the peculiar circumstance where the choice for this Court is between saving the life of three years old child i.e. the petitioner No.1 or adherence to the legal requirement in absolute terms.”

Accordingly, the Court while disposing off the petition, directed the operation to be conducted.

Case Title: Rajveer Singh Vs. Union of India, Diary No.- 45541 - 2023

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