SCA/989520/2008 1/23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9895 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MUKESH GANDHI - Petitioner(s) Versus DEPUTY SECRETARY (HEALTH) MEDICAL EDUCATION & RESEARCH - Respondent(s) ========================================================= Appearance : MR NEHAL R JOSHI for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MS KOTECHA, AGP FOR THE STATE AUTHORITIES ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 07/08/2008 ORAL JUDGMENT 1.Leave to join Additional Director, Health, Medical Services and Medical Education as party SCA/989520/2008 2/23 JUDGMENT respondent. 2.Rule. Ms.Kotecha, learned AGP waives service of notice of Rule for the respondent authorities, including the newly added respondent. With the consent of the learned Counsel for both the sides, it matter is heard. 3.The short facts of the case appear to be that the wife of the petitioner is having cirrhotic liver due to Hepatitis-C with Genothype-I and her blood group is 'Rh A+'. She is already under the treatment of Sterling Hospital, Ahmedabad. As per the petitioner, upon the advice of the doctors, a liver is required to be transplanted in the body of the wife with a view to save her life. Therefore, the petitioner had applied for permission of harvesting of the liver by Sterling Hospital, Ahmedabad. It is the case of the petitioner that the liver is to be transplanted at the hospital of experts at Delhi, where the success ratio of transplantation of liver operation is more. The desire of the petitioner is that the surgery for transplantation of liver of his wife is through SCA/989520/2008 3/23 JUDGMENT the panel of expert doctors, may be at Delhi or at Hyderabad. The application of the petitioner has been rejected vide order dated 16.6.2008 Annexure “D” and it is under these circumstances the present petition. 4.Heard Mr.Joshi, learned Counsel for the petitioner and Ms.Kotecha, learned AGP for the State Authorities. 5.The contention raised on behalf of the petitioner is that the petitioner is desirous to have the harvesting of the liver of a dead person or a living person, who is having sentimental attachment with the wife of the petitioner or on humanitarian consideration such person may donate his/her liver for therapeutic use to cure the disease of the wife of the petitioner. It was submitted by the learned Counsel for the petitioner that as per the advice of the doctors of Sterling Hospital such operation can be undertaken by them for harvesting of the liver and thereafter the petitioner may undertake the operation of transplantation at Delhi or any other hospital SCA/989520/2008 4/23 JUDGMENT of experts. Therefore, the petitioner had applied for such permission, but the permission has been declined and, therefore, this petition. 6.The learned AGP, under the instructions of Respondent No.2, had declared before the Court that there is no provision under the Act for harvesting of the liver at one place in Gujarat and transplantation at a different hospital, may be at Delhi or any other hospital, which is located outside the State. Therefore, the authority has not considered the said aspect. It was also submitted that such facilities are available only in Civil Hospital Campus through Kidney Disease and Research Centre and Sterling Hospital is not a recognized hospital for harvesting or transplantation of liver. Therefore, even otherwise also the permission could not be granted for harvesting of the liver by Sterling Hospital. Therefore, it was submitted that the decision is rightly taken by the authority of rejecting the application. 7.If the provisions of the Transplantation of Human Organs Act, 1994 (hereinafter referred to SCA/989520/2008 5/23 JUDGMENT as the “Act”) read with the Transplantation of Human Organs Rules, 1995 are considered, it appears that s per the Scheme of the Act for therapeutic purpose removal of human organ and transplantation of such organ is made permissible. Section 2(c) refers for the Committee, which is to be constituted under Section 9(4) of the Act. Section 2(d) provides for the definition of the 'brain-stem death'. Section 2(e) defines the words 'deceased person'. Section 2(f) provides for the definition of the word 'donor' and Section 2(g) provides for the word 'hospital'. Section 2(h) provides that 'human organ' means any part of a human body, Section 2(i) provides for the definition of 'near relative', which means spouse, son, daughter, father, mother, bother or sister. Section 2(m) provides that the word 'recipient' means the person into whom any human organ is, or is proposed to be, transplanted. Section 2(o) provides that 'therapeutic purposes' means systematic treatment of any disease or the measures to SCA/989520/2008 6/23 JUDGMENT improve health according to any particular method or modality. Section 2(p) provides that 'transplantation' means the grafting of any human organ from any living persons or deceased person to some other living person for therapeutic purposes. Chapter II provides for the authority for removal of human organs, which includes by the donor to give the authority before his death in the manner provided under Section 3. Sub-section (3) of Section 3 provides for dealing with the situation in the event any relative has objection. Section 4 provides for removal of human organ not to be authorised in certain cases. Section 5 provides for the authority for removal of human organs in case of unclaimed bodies in hospital or prison. Section 6 provides for authority for removal of human organs from bodies sent for post-mortem examination for medico-legal or pathological purposes. Section 7 provides for preservation of human organs, which may be relevant for the purpose of this petition, reads as under:- SCA/989520/2008 7/23 JUDGMENT “7. Preservation of human organs.- After the removal of any human organ from the body of any person, the registered medical practitioner shall take such steps for the preservation of the human organ so removed as may be prescribed.” 8.Section 8 provides for declaration that such activities shall not be construed as rendering unlawful, if undertaken in accordance with this Act. Section 9, which is relevant for the purpose of this petition, reads as under:- “9. Restrictions on removal and transplantation of human organs.- (1) Save as otherwise provided in sub- section (3), no human organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient. (2) Where any donor authorises the removal SCA/989520/2008 8/23 JUDGMENT of any of his human organs after his death under sub-section (2) of Section 3 or any person competent or empowered to give authority for the removal of any human organ from the body of any deceased person authorises such removal, the human organ may be removed and transplanted into the body of any recipient who may be in need of such human organ. (3) If any donor authorises the removal of any of his human organs before his death under sub-section (1) of section 3 for transplantation into the body of such recipient, not being a near relative, as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the Authorisation Committee. (4) (a) The Central Government shall SCA/989520/2008 9/23 JUDGMENT constitute, by notification, one or more Authorisation Committees consisting of such members as may be nominated by the Central Government on such terms and conditions as may be specified in the notification for each of the Union territories for the purposes of this section. (b) The State Government shall constitute, by notification, one or more Authorisation Committees consisting of such members as may be nominated by the State Government on such terms and conditions as may be specified in the notification for the purposes of this section. (5) On an application jointly made, in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorisation Committee shall, after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act and the rules made thereunder, grant to the SCA/989520/2008 10/23 JUDGMENT applicants approval for the removal and transplantation of the human organ. (6) If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval.” 9.Sub-section (1) of Section 9 provides that no human organ shall be removed from the body of a donor before his death, unless the donor is a near relative of the recipient, but such provision is with the express words 'save as otherwise provided in sub-section (3) of Section 9.' Therefore, while applying such restrictions as provided under Section 9(1), the situations as contemplated under Sub-section (3) of Section 9 are saved. Sub-section (2) of Section 9 provides that where the authority is given under SCA/989520/2008 11/23 JUDGMENT Sub-section (2) of Section 3, the human organ may be removed and transplanted into the body of any recipient, who may be in need of any such human organ. Sub-section (3) of Section 9, which is relevant for the purpose of this petition provides that if any donor authorises the removal of any of his human organs before his death under Sub-section (1) of Section 3 for transplantation into the body of such recipient, who is not a near relative, as specified by the donor, it is required for the donor to state the reason, for authorising the removal of his organ and transplantation, of affection or of attachment towards the recipient or any other special reasons. Such human organ shall not be removed and transplanted unless prior approval of the authorisation committee is granted. Therefore, if the donor is other than near relative, then in that case, prior to the removal of the human organ and transplantation thereof, prior approval of the authorisation committee is required. 10.The Rule provides for making of the application SCA/989520/2008 12/23 JUDGMENT by the donor and sub-section (5) of Section 9 provides for holding of the inquiry and satisfaction to be arrived at by the authorisation committee that the applicant had applied with all the requirements of the Act and Rules made thereunder for removal and transplantation of the human organ. It is only thereafter permission is to be granted. If the authorisation committee is satisfied that the applicant has not complied with the requirements of the Act and the Rules made thereunder, it would be required for the authorisation committee to record the reasons in writing and then to reject the application for approval. 11.Rule 5 of the Rules reads as under:- “5. Preservation of Organs.- The organ removed shall be preserved according to current and accepted scientific method in order to ensure viability for the purpose of transplantation.” SCA/989520/2008 13/23 JUDGMENT 12.Rule 6 of the Rules provides as under:- “6. The donor and the recipient shall make jointly an application to grant approval for removal and transplantation of a human organ, to the Authorization Committee as specified in Form 10.” 13.Therefore, in cases where the donor is other than near relative and the permission is to be applied under Section 9(3), the application is required to be made in Form 10 and such application has to be joint application and the said aspect is also apparent from Sub-section (5) of Section 9. While examining the application, it would be required for the Authorization Committee to see that there is no consideration on the part of the donor to donate the human organ, which is prohibited under Section 19 of the Act and such special circumstances, if any would be of affection, attachment towards the recipient or humanitarian consideration and not the considerations, which SCA/989520/2008 14/23 JUDGMENT are prohibited and treated as offence under Section 19 of the Act. 14.The contention of the learned AGP on behalf of the authorities that the Act does not provide for removal of human organ at one place, may be at one hospital in the State and its transplantation at another hospital outside the State and, therefore, the authorities have declined the permission deserves consideration. 15.Section 7 of the Act, if considered, with Rule 5 of the Rules, it does envisage the situation, where a human organ may be removed and may be preserved to ensure viability for the purpose of transplantation. Therefore, removal of a human organ and the preservation thereof for the purpose of transplantation is one of the situations conceived under the Act. Therefore, it is not necessary that the moment human organ is removed, it is immediately transplanted into the body of the recipient. In a given case the organ itself may require its preservation or may be some other process required to be undertaken before its transplantation into the body of the SCA/989520/2008 15/23 JUDGMENT recipient. Therefore, if a situation of preservation of a human organ through accepted scientific method is conceived under the Act, there is no reason to rule out the possibility of transplantation of such human organ after some time and such may also include the transplantation thereof by other recognized hospital. 16.The apprehension voiced by the petitioner is that in the Kidney Research Institute of Civil Hospital, Ahmedabad, which has been referred by the authority in the impugned communication, the petitioner is not desirous to undergo of transplantation of the liver of his wife. In his submission the other hospitals located at Delhi and Hyderabad are more expertise in the field of transplantation of the liver, and the success ratio of such operation are more. Therefore, it was submitted that the permission may be granted to the petitioner for harvesting of the liver through recognized hospital in Gujarat, and petitioner may be permitted to have the transplantation operation at other hospitals may SCA/989520/2008 16/23 JUDGMENT be at Delhi or at Hyderabad. 17.As such there cannot be compulsion on the part of the recipient to have the liver transplanted in the very hospital, where it has been harvested. As observed earlier, situation of preservation of human organ through scientific mode is conceived under the Act. Therefore, there could be a transplantation of such human organ in different hospital than the hospital at which organ is removed. But of course with the requirement to be followed for ensuring that the preservation is under accepted scientific method and the viability for the purpose of transplantation is not lost. It is also required to be ensured that the transplantation takes place in the body of the recipient only, so that the purpose of donor for therapeutic use is fulfilled. What measures may be required to be undertaken are generally left to the authorization committee to decide and in any case, it would be required for the authorization committee also to ensure that, as and when such permission is granted, well accepted scientific SCA/989520/2008 17/23 JUDGMENT methods are complied for preservation of such human organ, and the same is transplanted in the body of the recipient through recognized hospital having expertized for such purpose, and there is no misuse by any party during the course of transplantation. This Court cannot express its view as an expert body for the accepted scientific mode to be undertaken for preservation of the organ in a manner that it does not lose its viability for the purpose of transplantation and it would be for the authorization committee comprising of the expert to prescribe the norms for such purpose, as and when the human organ is to be removed, preserved, and permitted to be transplanted at the another recognized hospital. However, it does appear that there is no prohibition under the Act, for removal of an organ of human body in one recognized hospital, and its transplantation takes place at a different recognized hospital. Therefore, as a consequence thereof, if the petitioner is desirous to have the transplantation of liver, at the another SCA/989520/2008 18/23 JUDGMENT recognized hospital may be at Delhi or Hyderabad, such is not prohibited under the Act. But it will be required for the authorization committee to impose condition that after harvesting of the liver, proper care is taken by petitioner, or the persons who are to transplant the liver for the preservation of the organ through accepted scientific method in order to see that the viability for the purpose of transplantation is not lost. The Authorization Committee, while granting such permission may also put additional condition to be complied with for removal of such organ at one recognized hospital and its transplantation thereof in the body of the recipient at another recognized hospital. 18.As Sterling Hospital is not recognized hospital for harvesting or transplantation of the liver, as declared by the learned AGP under the instruction of the respondent No. 2, the authority is right in rejecting the application for grant of permission for harvesting of the liver at Sterling Hospital, and it is rightly SCA/989520/2008 19/23 JUDGMENT observed by the authority in the impugned communication that the liver transplantation facility is available at institute of Kidney Disease and Research Centre at Civil Hospital, Ahmedabad. If the petitioner is desirous to make use of such facility for harvesting of the liver at institute of Kidney and Research Centre, Civil Hospital, it would be required for the petitioner to move appropriate application for such purpose. 19.Mr. Joshi learned Counsel for the petitioner submitted that the joint application may be required, if human organ is to be removed before the death of such person for transplantation into body of the recipient, as per Section 9(3) of the Act. If the human organ is to be removed after the death of the person concerned, as per Sub Section 2 of Section 3, there may not be any joint application since, the donor may not be available for moving the application, and he submitted that in such cases application may be submitted by the recipient, and the person who is in lawful possession of the dead body of the SCA/989520/2008 20/23 JUDGMENT donor. He submitted that the petitioner may also opt for harvesting of the liver in accordance with provisions of Section 3(2) of the Act, or under Section 3(3) of the Act. 20.As no application has been made on such basis, it may not be possible for this Court to express any view on the said aspect. But suffice to state that if liver is to be removed from the body of dead person, it would be required for the authorization committed to ensure that the conditions, as provided under Section 3(2) or 3(3) as the case may be, are fully satisfied. To say in other word, Section 3(2) provides that if the donor during his life time has authorised before his death, the removal of human organ of his body, for therapeutic purpose then in that case, unless that authority is revoked, the persons in possession of the dead body of the donor shall grant all reasonable facilities for removal of the organ from the dead body of the donor to a registered medical practitioner. Section 3(3) provides that in case, where no such authority is given as per Sub-Section 2 of SCA/989520/2008 21/23 JUDGMENT Section 3 before the death, then in that case the person who is in lawful possession of the dead body of such person, may authorise the removal of human organ of the deceased person for its therapeutic purpose. Therefore, if any application is moved, it would be required for the authorization committee to ensure that even in cases under Section 9(2) of the Act for removal of the human organ of a person after his death, the aforesaid requirement is complied with. However, in such circumstances, the application shall be required to be submitted in form No. 1, provided as per Rule 3 or in form No. 3, as the case may be. Suffice to state that it will be required for the authorization committee to ensure that the necessary procedure as required under the rules are properly followed. 21.In view of the aforesaid, as the Sterling Hospital is not recognized hospital for harvesting transplantation of the liver, as per the declaration made on behalf of the respondent No. 2, the decision of respondent for not SCA/989520/2008 22/23 JUDGMENT granting permission for harvesting of the liver through Sterling Hospital cannot be said as illegal. 22.Mr. Joshi learned Counsel for the petitioner submitted that the petitioner would make fresh application in the prescribed form for harvesting of the liver through Institute of Kidney and Research Centre, which is recognized hospital and thereafter, the authorization committee may consider the case in accordance with law. 23.If such application is made, after examining the genuineness of all aspect, the authorization committee shall consider the application keeping in view of the provisions of the Act read with the aforesaid observations and shall pass appropriate orders in accordance with law as early as possible, and preferably within a period of one week or within shorter period, keeping in view the urgency, from the receipt of such application. 24.The petition is allowed to the aforesaid extent. Rule partly made allowed accordingly. No SCA/989520/2008 23/23 JUDGMENT order as to cost. Direct service is permitted. 7.8.2008 (Jayant Patel, J.) vinod/suresh