Anshita Bansal vs Secretary Ministry Of Health And Family Welfare & Ors

Sanjeev Sachdeva, J

The petition was taken up in the morning and pursuant to directions passed in the morning the petition is once again taken up today through

video conferencing at 5.00 p.m.

By this petition, petitioner seeks a direction to the Appropriate Authority appointed under Section 13(1) of Transplantation of Human Organs &

Tissues Act, 1994 for allowing liver transplantation and permitting the petitioner to donate part of her liver to her father.

Father of the petitioner is suffering from advance stage of liver failure due to liver disease. Both â€" the petitioner and her father are Indian

citizens and Indian national.

Father of the petitioner is presently undergoing treatment under Dr. Niripen Saikia, at Pushpawati Singhania Hospital & Research Institute

(PSRI Hospital).

The treating doctor by way certificate dated 20.03.2020 has confirmed that the petitioner’s father is suffering from CIRRHOSIS of Liver

(Child C, CTP “10†MELD-NA-“26â€) with PHT Refractory Ascites, Recurrent, HE, Type II HRS with DM i.e. advance stage of liver

failure and required urgent liver transplantation. The certificate of the doctor suggests that transplantation should be done as soon as possible.

Mother of the petitioner made a representation on behalf of the petitioner to the competent authority, Secretary â€" Health and Family Welfare

on 23.03.2020 seeking permission to donate part of her liver for transplantation to her father.

It is contended by learned counsel for the petitioner that no permission is necessary under the Transplantation of Human Organs & Tissues Act,

1994 (hereinafter referred to as the 1994 Act in case of any near relative, if the donor is not a minor.

Learned counsel further submits that under the 1994 Act, originally, there was a complete embargo on a minor donating an organ or tissue

before death. Learned counsel contends that by an Amendment in the year 2011, an exception has been carved out to permit a minor to donate

organ or tissue before death in the manner as may be prescribed.

It is contended by learned counsel for the petitioner that in view of the amendment by the 2011 Amending Act, complete prohibition for a minor

to donate a human organ or tissue before death has been done away with and a minor is permitted to donate organ and tissue in a manner as may

be prescribed by the Government.

Learned counsel further contends that in terms of Rule 5(3) (g) of the Transplantation of Human Organs & Tissues Rules, 2014, living organs

or tissues, donation by minor is not permitted except under exceptional medical grounds to be recorded in details with full justification and with

prior approval of the competent authority.

It is contended by learned counsel for the petitioner that father of the petitioner is presently having “MELD score of 26 & CTP score of

10†which is a very high risk score which implies that it is virtually the last stage of liver disease and in case transplantation is not done

immediately, there is no likelihood of the father of the petitioner surviving.

It is further contended that date of birth of the petitioner is 22. 05.2002 and on 22.05.2020 she would turn a major and presently she is aged

17 years 10 months and about 8 days and is studying in Class-XII and is mentally capable and has mature understanding. It is contended that she

has voluntarily and without any force or coerce agreed to donate part of her liver to her father who is the sole earning member of the family.

Further it is contended that in view of the present prevailing situation by complete Lock-down in the country on account of pandemic COVID-

19 there is also no possibility of finding a donor in the near future and the father of the petitioner requires immediate surgery.

Further it is contended that medical examination has suggested that mother of the petitioner is not a suitable donor and the petitioner who is the

eldest child, is a suitable donor as even the blood group of the father and daughter is the same and as per the tests there is compatibility and higher

possibility of the transplantation being successful in case petitioner is the donor.

This petition was listed in the morning today when it was pointed out by Mr. Naushad Ahmed Khan, Learned Standing Counsel appearing for

the Government of the NCT of Delhi that the representation filed by the mother of the petitioner was still pending and had been forwarded to the

appropriate authority and a decision was likely to be taken today itself. Accordingly, the case was adjourned to 5. 00 pm.

Mr. Khan has forwarded an e-mail, which he had received from Mr. Satender Singh Dushyant, Special Secretary of Health and Family

Welfare, Govt. of NCT of Delhi, to the VC administrator. Since the response has been received by e-mail, the same is taken on record and shall

for part of the Court record.

The contents of the email read as under: -

“From: SATYENDRA SINGH DURSAWAT

Date: 1 April 2020 at 5:21:37 PM IST

To: [email protected]

Subject: WP(C)Anshita Bansal Vs. Secretary,Deptt. of Health and Family Welfare, GNCTD

Sir,

In the subject matter, I am directed to inform you that the appropriate authority has decided to constitute a committee/medical Board in the instant

matter and a final decision regarding the request of Ms. Anshita Bansal to allow her, who is minor aged 17 years and 10 months old, to donate

part of her liver to her father who is suffering from advance liver failure due to liver disease may be taken as per the recommendation of the

committee.

Since, an earlier matter WP(C) 7/2019 ""Mohd Suhel Mia versus Union of India & ANR"" a decision was taken based upon the recommendation

of a Committee, constituted for this purpose at AIIMS consisting of 5 doctors who after evaluating the medical investigation reports of the potential

donor who was also a minor, has come to the conclusion that the donor has a higher than usual risk of being a potential donor for liver

transplantation and should not be permitted for liver donation at that time.

In view of the above you are requested to kindly apprise the Hon'ble High Court, Delhi accordingly.

Regards,

Spl. Secretary(H&FW)

GNCTDâ€​

Though, the e-mail states that the appropriate authority has decided to constitute a medical board. Mr. Naushad Ahmad Khan, learned

standing counsel appearing for Govt. of NCT of Delhi submits that he has received instructions that the committee/appropriate authority has

declined the representation of the mother of the petitioner relying on the decision in W.P.(C) 7/2019 titled ‘Mohd. Suhail Mia Vs. Union of

India’.

The reading of the e-mail shows that the decision in Mohd. Suhail Mia (supra) was based on the recommendation of the committee which after

evaluating the medical investigation report of potential donor had come to the conclusion that donor was at higher risk for liver transplantation and

accordingly permission was not granted for liver donation.

By order dated 14.01.2019 in Mohd. Suhail Mia in W.P. (C) 7/2019 (supra), a coordinate bench of this court has held that a minor can

donate an organ in exceptional medical circumstances, However, it is noticed that the decision of the committee constituted in that case was based

on the medical opinion of the expert body which had opined that the minor donor was at risk.

There is no medical opinion in the present case to suggest that there is a potential risk to the petitioner. The minor is aged over 17 years and 10

months.

Further, there is no complete prohibition in a minor donating an organ or tissue prior to attaining majority. Donation is permissible but in

exceptional circumstances and in accordance with the rules.

The decision of the committee of rejecting the representation of the petitioner solely on the ground that the petitioner is a minor is not

sustainable.

However, keeping in view of the directions that had been issued in Mohd. Suhail Mia in W.P. (C) 7/2019, whereby the Court had constituted

an expert body to considered as to whether there could be any potential risk to the minor in donating part of liver, I deem it expedient to direct the

Director of Max Super Speciality Hospital, Saket to immediately constitute a committee of two senior doctors preferably; one who is an expert in

Liver Transplant and Biliary Sciences to consider the case of the petitioner and to ascertain if there could be any potential risk to the petitioner in

donating part of her liver to her father.

Directions have been issued to the Director of Max Super Speciality Hospital, Saket to constitute a committee because it is stated on behalf of

the petitioner that the compatibility and other tests of the petitioner and her father were conducted in the said Hospital and also keeping in view of

the present lockdown situation and the medical condition of the father of the petitioner.

Petitioner would be at liberty to present her case before the said committee and the committee and shall render its advice latest by tomorrow

evening to the respondent and respondent shall consider the report immediately thereafter and take a decision forthwith.

List again on 03.04.2020 at 2.00 p.m.

The order be uploaded on the website forthwith.

Copy of the order be forwarded to the counsels for both parties through email. Copy of the order be also forwarded to the Director of Max

Super Speciality Hospital, Saket for compliance by the Counsel for the Petitioner.