Plea for allowing live-body donation dismissed: Allahabad High Court
A plea seeking a direction to enable and make it lawful for the petitioner to perform Live Body Donation (Jeevit Deh Dan) of his human body and of all his living organs and tissues was dismissed by Allahabad High Court. The High Court presided over by J. S. Yadav and J. J Banerji dismissed the plea made in the case of Ranjan Srivastava vs. Union of India, [Public Interest Litigation No. 49 of 2021]. The facts of the case are that plea was filed by one Ranjan Srivastava to seek directions to enable and make it lawful for medical doctors/hospitals/institutions to perform the necessary medical procedures on him for his act of Live Body Donation. In his plea, he sought directions from the Court that living organs and tissues from the body of the petitioner could be transplanted into the bodies of the desperately suffering needy could be done. The Petitioner pleaded that the fundamental right under Article 21 of the Constitution gave the petitioner a right to walk into an operation theatre of a suitable facility at a suitable time and for making multiple gifts of life to desperately suffering and dying individuals. The Court, in this case, analysed the Transplantation of Human Organs and Tissues Act, 1994, which includes provisions for the regulation of removal, storage and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto. Further, Section 9 of the act includes restrictions on the removal and transplantation of human organs and tissues. The Court, in this case, was of the opinion that, “If we accede to the relief sought for by the petitioner in the present writ petition, the same would contrary to the restrictions imposed u/s 9 of the Act of 1994. It is further noticed from the provisions of the Act of 1994 that detail procedure is laid down under Chapter II of the Act of 1994 which deals with the manner for the removal of human organs or tissues or both.” The Court further held that “Since ample provisions have been made in the Act of 1994 as regard to removal, storage and transplantation of human organs and tissues for therapeutic purposes, we are not inclined to grant the relief as sought for by the petitioner in this petition being misconceived.” Click here to read the judgement
Court No. 9 Case : PUBLIC INTEREST LITIGATIONNo. 421 Petitioner : Ranjan Srivastava Respondent : Union of India Counsel for Petitioner : In Person Counsel for Respondent : A.S.G.I Hon ble Sanjay Yadav J Hon ble Jayant Banerji J The petitioner who appears in person in this public interest litigation seeks following reliefs I. Make a declaration and issue an express writ order and direction to enable and make it lawful for the petitioner to exercise his supreme right regarding his life and body whereby he makes performs Live Body Donation(Jeevit Deh Daan) of his human body and of all his living organ and tissues for the desperate and suffering needy by walking into an operation theater of a suitable facility at a suitable time and for making multiple gifts of life to desperately suffering and dying individuals. II. Make a declaration and issue an express writ order and direction to enable and make it lawful for medical doctors hospital institution to perform the necessary medical procedures on the petitioner for his act of Live Body Donation Jeevit Deh Daan) which will be necessary for the transplant of the living organ and tissues from the body of the petitioner into the bodies of the desperately suffering needy whereby there is an increase in the scope of the Hippocratic oath Taking note of the relief sought for by the petitioner and the contentions in furtherance thereto that it is fundamental right enshrined under Article 21 of the Constitution of India to walk into an operation theatre of a suitable facility at a suitable time and for making multiple gifts of life to desperately suffering and dying individuals. We are instantly reminded of the enactment passed by the Parliament i.e the Transplantation of Human Organs and Tissues Act 1994 which received assent of the President on 8.7.1994. It is an Act to provide for the regulation of removal storage and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto. Section 9 of the enactment stipulates restrictions on removal and transplantation of human organs and tissues or both. Section 9 of the Act of 1994 is 9 Restrictions on removal and transplantation of human organs or tissues or both. 1) Save as otherwise provided in sub sectionno human organ or tissue or both 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 1A) Where the donor or the recepient being near relative is a foreign national prior approval of the Authorisation Committee shall be required before removing or transplantation human organ or tissue or both Provided that the Authorisation Committee shall not approve such removal or transplantation if the recipient is a foreign national and the donor is an Indian national unless they are near relatives 1B) No human organs or tissues or both shall be removed from the body of a minor before his death for the purpose of transplantation except in the manner as may be prescribed 1C) No human organs or tissues or both shall be removed from the body of a mentally challenged person before his death for the purpose of Explanation. For the purpose of this sub section i) the expression "mentally challenged person" includes a person with mental illness or mental retardation as the case may be ii) the expression "mental illness" includes dementia schizophrenia and such other mental condition that makes a person intellectually disabled iii) the expression "mental retardation" shall have the same meaning as assigned to it in clauseof section 2 of the Persons With DisabilitiesAct 1995Where any donor authorises the removal of any of his human organs or tissues or both after his death under sub sectionof section 3 or any person competent or empowered to give authority for the removal of any human organ or tissue or both from the body of any deceased person authorises such removal the human organ or tissue or both may be removed and transplanted into the body of any recipient who may be in need of such human organ or tissue or both 3) If any donor authorises the removal of any of his human organs or tissues or both before his death under sub sectionof 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 or tissue or both shall not be removed and transplanted without the prior approval of the Authorisation 3A) Notwithstanding anything contained in sub sectionwhere a) any donor has agreed to make a donation of his human organ or tissue or both before his death to a recipient who is his near relative but such donor is not compatible biologically as a donor for the recipient and b) the second donor has agreed to make a donation of his human organ or tissue or both before his death to such recipient who is his near relative but such donor is not compatible biologically as a donor for such recipient then c) the first donor who is compatible biologically as a donor for the second recipient and the second donor is compatible biologically as a donor of a human organ or tissue or both for the first recipient and both donors and both recipients in the aforesaid group of donor and recipient have entered into a single agreement to donate and receive such human organ or tissue or both according to such biological compatibility in the group the removal and transplantation of the human organ or tissue or both as per the agreement referred to above shall not be done without prior approval of the Authorisation Committee 4)The composition of the Authorisation Committees shall be such as may be prescribed by the Central Government from time to time b) The State Government and the Union territories shall constitute by notification one or more Authorisation Committees consisting of such members as may be nominated by the State Governments and the Union territories 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 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 If we accede to the relief sought for by the petitioner in the present writ petition the same would contrary to the restrictions imposed u s 9 of the Act of 1994. It is further noticed from the provisions of the Act of 1994 that detail procedure is laid down under Chapter II of the Act of 1994 which deals with the manner for the removal of human organs or tissues or both. Since ample provisions have been made in the Act of 1994 as regard to removal storage and transplantation of human organs and tissues for therapeutic purposes we are not inclined to grant the relief as sought for by the petitioner in this petition being Consequently petition fails and is dismissed. Order Date : 21.1.2021 Jayant Banerji J) (Sanjay Yadav J