Neha Chamail vs State of Uttarakhand & others

SUDHANSHU DHULIA, J.

The petitioner who is 29 years female is suffering from a “chronic kidney disease†and has been advised kidney transplant. Although a donor is

available to the petitioner but the donor being a non-relative donor, it can only be done after a sanction is taken from the “Authorisation

Committeeâ€​.

According to the petitioner, the Authorisation Committee of the hospital where the petitioner was admitted i.e. Himalayan Hospital has not taken

any decision in this regard.

Under the Transplantation of Human Organs and Tissues Act, 1994 and the Rules framed thereunder, the case of the petitioner ought to have been

forwarded to the State Level Authorization Committee but the same has not been done.

On 27.07.2018, this Court had asked the State Counsel to get the instruction in the matter and apprise this Court as to whether the Authorisation

Committee as visualized under the Transplantation of Human Organs and Tissues Act, 1994 and the Rules framed thereunder has been constituted in

the State or not.

Learned State Counsel has now given a statement before this Court on the basis of instruction that the Director General, Medical Health alongwith

Director, Medical Health presently working as the Committee, as the term of many of its members has already come to an end.

The recommendations of this Authorisation Committee are not only mandatory but are extremely vital in cases of organs transplantation. The

Authorisation Committee is defined under Section 2 (c) read with sub-section (4) (a) and (b) of Section 9 of the Act, which read as under:-

“2. Definitions.- In this Act, unless the context otherwise requires,-

(a)…

(b)…

(c) “Authorisation Committeeâ€​ means the committee constituted under clause (a) or clause (b) of sub-section (4) of Section 9;

Restrictions on removal and transplantation of human organs or tissues or both.-

(1)…

(2)…

(3)…

(4) (a) 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.â€​

The composition of State or District Level Authorisation Committees is given under Rule 13 framed by the Central Government known as

Transplantation of Human Organs & Tissues Rules, 2014. Rule 13 of the Transplantation of Human Organs & Tissues Rules, 2014 reads as under:-

“13. Composition of State or District Level Authorisation Committees.- The State or District Level Authorisation Committee, shall as notified by

the State Government in case of State and by the Union territory Administration in case of Union territory, consist of.-

(a) a Medical Practitioner officiating as Chief Medical Officer or any other equivalent post in the main or major Government hospital of the District -

Chairperson;

(b) two senior registered medical practitioners to be chosen from the pool of such medical practitioners who are residing in the concerned District and

who are not part of any transplant team - Member;

(c) two persons (preferably one woman) of high integrity, social standing and credibility, who have served in high ranking Government positions, such

as in higher judiciary, senior cadre of police service or who have served as a reader or professor in University Grants Commission approved

University or are self-employed professionals of repute such as lawyers, chartered accountants, doctors of Indian Medical Association, reputed non-

government organisation or renowned social worker - Member;

(d) Secretary (Health) or nominee and Director Health Services or nominee from State Government or Union territory Administration-Member:

Provided that effort shall be made by the State Government concerned to have most of the members’ ex-officio so that the need to change the

composition of Committee is less frequent.â€​

The powers and duties of the Authorisation Committee are given in Rule 7, which reads as under:-

“7. Authorisation Committee.- (1) The medical practitioner who will be part of the organ transplantation team for carrying out transplantation

operation shall not be a member of the Authorisation Committee constituted under the provisions of clauses (a) and (b) of sub-section 4 of Section 9 of

the Act.

(2) When the proposed donor or recipient or both are not Indian nationals or citizens whether near relatives or otherwise, the Authorisation Committee

shall consider all such requests and the transplantation shall not be permitted if the recipient is a foreign national and donor is an Indian national unless

they are near relatives.

(3) When the proposed donor and the recipient are not near relatives, the Authorisation Committee shall,-

(i)Â Â Â evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or

promised to be made to the donor or any other person;

(ii)Â Â prepare an explanation of the link between them and the circumstances which led to the offer being made;

(iii)Â examine the reasons why the donor wishes to donate;

(iv)Â examine the documentary evidence of the link, e.g. proof that they have lived together, etc.;

(v)Â Â examine old photographs showing the donor and the recipient together;

(vi)Â evaluate that there is no middleman or tout involved;

(vii) evaluate that financial status of the donor and the recipient by asking them to give appropriate evidence of their vocation and income for the

previous three financial years and any gross disparity between the     status of the two must be evaluated in the backdrop of the objective of

preventing commercial dealing;

(viii) ensure that the donor is not a drug addict;

(ix) ensure that the near relative or if near relative is not available, any adult person related to donor by blood or marriage of the proposed unrelated

donor is interviewed regarding awareness about his or her intention to donate an organ or tissue, the authenticity of the link between the donor and the

recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of.

(4) Cases of swap donation referred to under sub-section (3A) of section 9 of the Act shall be approved by Authorisation Committee of hospital or

district or State in which transplantation is proposed to be done and the donation of organs shall be permissible only from near relatives of the swap

recipients.

(5) When the recipient is in a critical condition in need of life saving organ transplantation within a week, the donor or recipient may approach hospital

in-charge to expedite evaluation by the Authorisation Committee.â€​

It is very unfortunate that there is not yet a proper functioning “Authorisation Committee†in the State of Uttarakhand, as contemplated under

the Act and the Rules framed thereunder. The State Counsel has apprised this Court that the term of many of the ex-officio or other members of the

Committee has come to an end.

According to the respondents, State Level Authorisation Committee was constituted in the year 2014 but as of now many of the seats are vacant

and presently only Director General, Medical Health and Director, Medical Health are functioning.

It is a very sorry state of affairs to say at least. Rule 13 clearly stipulates that efforts should be made by the State Government concerned to have

most of the members’ as ex-officio so that the need to change the composition of Committee is less frequent.

In view of the aforesaid provision given in Rule 13, there is no reason why seats of the Authorisation Committee should remain vacant.

Since the State Level Authorisation Committee can always be constituted under the Act and the Rules framed thereunder and considering the

medical condition of the petitioner, the Secretary, Medical Health, Government of Uttarakhand is hereby directed to constitute a proper Committee

and inform the Court within a period of forty-eight hours as this Court has been apprised by the State Counsel that in this regard names have already

been recommended.

List this case on 02.08.2018 in the daily cause list.

Since the learned State Counsel has already apprised that the Director General, Medical Health and the Director, Medical Health are presently

functioning, the petitioner would always be at liberty to approach the Director General, Medical Health in this regard, who shall take a decision in the

matter immediately as time is of essence in this case.

Let a certified copy of this order be given today itself on payment of usual charges.