Gujarat Govt's Policy Giving Preference To Domiciled Residents In Cadaveric Organ Transplant Unconstitutional: High Court

The Gujarat High Court has declared as unconstitutional the State government's policy giving priority to persons domiciled in Gujarat for the purpose of cadaveric organ transplant (transplant which takes place upon the death of the donor as opposed to live organ transplants).A single bench of Justice Biren Vaishnav ruled, "While interpreting Article 21 of the Constitution of India, the Apex Court has held that the 'Right to Health' is an integral part of the 'Right to Life' and the State has a constitutional obligation to provide health facilities. Denial of medical treatment to the petitioners who are not domiciles of Gujarat is illegal and unconstitutional."The development comes in disposal of three writ petitions challenging the Gujarat Deceased Donor Organ and Tissue Transplantation Guidelines (Guidelines). Through paragraph No.13(1) and 13(10)(C) of these Guidelines, the State had introduced the requirement of a domicile certificate for registration of a patient for enrolling him on the State List for organ transplant.The first petitioner, a Canadian citizen and an Overseas Citizen of India who had moved back to Ahmedabad and who held Indian driving license and Aadhar card, submitted that she was diagnosed with a kidney related illness requiring transplant, for which she was required to register herself as a recipient under the Transplantation of Human Organs and Tissues Act, 1994 (Act). However, the Guidelines required her to possess a 'domicile certificate' as a precondition to become a 'recipient,' which domicile certificate was denied to her on account that she was a Canadian citizen. The second petitioner, an Indian citizen from Madhya Pradesh but of Gujarati descent, submitted that she was suffering from a serious liver disease which required transplantation urgently. Upon registration, however, she was registered in the non-domicile list of the Guidelines, which list is considered only after the domicile residents in order of priority. The third petitioner, an Indian national and citizen belonging to Jharkhand but working and permanently residing in Ahmedabad submitted that he was suffering from a chronic kidney disease, but was refused transplant for not having domicile status in Gujarat. The Court noted that the object of the parent Act was to prevent and prohibit commercial dealings in human organs, which intent was furthered, for instance, by Section 9, which provided that no organ could be removed from the donor before his death for transplanting it into a recipient unless the donor was a near relative of the recipient. However, the Guidelines in question were specifically issued and covered only cases of cadaver donations with the object to improve access to life transforming transplantation for the needy by promoting organ donations of a deceased person by means of a central registry which was designed and maintained with a view to keep a computerised waiting list of all the potential organ recipients. The question which was for consideration before the Court was whether the Guidelines which prescribed a domicile certificate as a prerequisite to be a recipient to be registered at a hospital in Gujarat was violative of the Constitution. The High Court held the Guidelines to be violative of both the Act and the Constitution. It said: "Reading the Act of 1994 and the Rules thereunder indicate that the purpose of the Act is to stem commercialization in organ trade and therefore a mechanism to monitor absence of commercial consideration between recipient and donor are sought to be controlled. For the purposes of the Act, the powers to curb such transactions cannot be extended to formulate executive instructions giving only a domicile of a State to be able to register himself or herself for organ donation, as a recipient as there is no nexus sought to be achieved. When the purpose of the Act and the Rules is as to prevent commercial dealings in human organs and tissues as well as to regulate transplantation of human organs for therapeutic use, the purpose of the Act and the Rules was never to restraint medical treatment to the domicile of a State."The Court held that the Guidelines failed Article 14 of the Constitution, since the rationale behind classification between 'domiciled' and non-domiciled' citizens lack a reasonable nexus with the object which the parent Act sought to achieve. As far as Article 21 was concerned, the Court referred to various decisions such as Francis Goralie Mullin v. The Administrator, AIR 1981 SC 746, where right to life was considered to be of supreme importance in a democratic society, Khanak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295, where 'life' in 'right to life' was held to be beyond mere animal existence, and Maneka Gandhi v. Union of India, AIR 1978 SC 1675, where right to life was held to include within its ambit the right to live with human dignity and all...

Gujarat Govt's Policy Giving Preference To Domiciled Residents In Cadaveric Organ Transplant Unconstitutional: High Court

Rahul Garg

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