[Sonia Ajit Vayklip (Miss.) & Anr v. Hospital Committee, Lilavati Hospital & Research Centre & Ors., AIR 2012 Bombay 93.]
A tribal lady from Chhattisgarh, had challenged the decision of the respondents herein refusing to grant approval for transplantation of her kidney to the body of her younger brother Deepak Ajeet Vayklip. By their report dated 4th January 2012, the Authorisation Committee and the Chairman of the Authorisation Committee and Director of Medical Education and Research, Mumbai have not granted permission to the petitioner No. 1 for donating her kidney to her brother Deepak Ajeet on the ground of mental status of the petitioner No. 1 and also on the ground that the petitioner donor is suffering from right kidney stones and ureteric stones.
The Court observed that as the preamble indicates, the Transplantation of Human Organs and Tissues Act, 1994 is enacted to provide for regulation of removal, storage and transplantation of human organs and tissues for therapeutic purposes and for prevention of commercial dealings in human organs and matters connected or incidental thereto. Section 3 of the Act provides that any donor may, in such manner and subject to such conditions as may be prescribed, authorise the removal, before his death, of any human organ or tissue or both of his body for therapeutic purposes in such a manner and subject to such conditions as may be prescribed.
The legislative scheme therefore, is that two types of cases are contemplated:
(i) donor to stranger
(ii) from donor to near relative
No such approval is required from the Authorisation Committee for donation of a human organ or tissue to a near relative, because there would be no commercial element for such donations. Even in the donation to a near relative, there are three restrictions:
(A) where either the donor or the recipient is a foreign national, prior approval of the Authorisation Committee is required.
(B) in case of a minor, no organ or tissue can be removed from the body of the minor before his death for the purpose of transplantation except in the manner as prescribed;
(C) in case of mentally challenged person, no organ or tissue can be removed from the body of the mentally challenged person before his death for the purpose of transplantation. Mentally challenged person is defined as having mental illness or mental retardation.
The Court observed that in cases where donor and recipient are near relatives as defined by the Act, there need be no enquiry by Authorisation Committee to ascertain whether there is any commercial element. Such enquiry is therefore, not at all required to be held in the case of near relatives. Approval of Authorisation Committee would not be necessary in such cases. Having regard to the facts and circumstances of the case and the urgency involved and also having regard to the fact that the State of Chhattisgarh has also released a grant of Rs.2 lac in favour of the proposed kidney transplantation of the petitioner No. 2, the Court allowed the petition.
