HC quashes Gujarat govt's organ transplant priority policy giving preference to domicile residents

Ahmedabad: Gujarat Government's policy of giving priority to people domiciled in the State for cadaveric organ transplant, which takes place after the death of the donor, has been declared by the High Court to be unconstitutional.

Referring to the Article 21 of the Constitution, the HC single bench of Justice Biren Vaishnav noted, "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."

In this regard, the HC bench also referred to the Transplantation of Human Organs and Tissues Act, 1994 and the Regulations and noted, "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."

These observations came while the bench was considering three pleas that challenged the Gujarat Deceased Donor Organ and Tissue Transplantation Guidelines (Guidelines). The State through paragraph No.13(1) and 13(10)(C) of these Guidelines made the domicile certificate mandatory for registration of a patient and enroll him/her on the State List for the purpose of organ transplant.

Among these three pleas, the first petitioner is a Canadian citizen and an overseas citizen of India. She moved back to Ahmedabad back in 2009.  After being diagnosed with kidney diseases, she had been recommended for a transplant. However, when she tried to register herself as a recipient under the Transplantation of Human Organs and Tissues Act, 1994 (Act), the guidelines required her to possess a 'domicile certificate'. It was a precondition for becoming a recipient under the Act. On the other hand, since she was a Canadian Citizen, she was denied the domicile certificate as well.

Although the second petitioner is an Indian Citizen hailing from Madhya Pradesh, she is Gujarati by descent. She was suffering from liver cirrhosis and therefore needed an urgent transplantation. When she registered under the 1994 Act, she was registered under non-domicile list of candidates citing paragraphs 13.1 and 13.10(C)(2) of the G-DOT Guidelines. On the other hand, the domicile residents get preference for organ transplant. So, she approached the HC bench seeking relief.

The third petitioner, who is suffering from Chronic Kidney Disease, belongs to Jharkhand. However, he is working and permanently residing in Ahmedabad. He was also refused the transplant on the ground that he had not lived in Gujarat for 10 years and he hails from Jharkhand.

After taking note of the submissions, the bench perused the Statement of Objects and Reasons of the parent Act of 1994  and noted, "Reading the Statement of Objects and Reasons of the Act indicates that in order to bring out a comprehensive legislation to regulate removal of organs from living as well as dead persons and transplantation of such organs the Act was enacted. This was to prevent and prohibit commercial dealings in human organs."

On the other hand, Gujarat Deceased Donor Organ and Tissue Transplantation Guidelines (G-DOT Guidelines) were issued back in 2019 to improve access to life transforming transplantation for needy citizens by promoting deceased organ donation under the guidelines the State Organ and Tissue Transplantation Organization (SOTTO). Therefore, the Gujarat Guidelines are in connection with cadaver transplantations.

For this, the State aimed to design and maintain a central registry to keep a computerised waiting list of all the potential organ transplant recipients. While considering the question if the Guidelines which made domicile certificate as a prerequisite for being a recipient of organ transplant was violating the Constitution, the bench opined in the affirmative.

Holding that the State's policy of denying medical treatment to the non-domicile persons was "illegal and unconstitutional", the bench further clarified,

"By way of paragraph No.13(1) and 13(10)(C), the State has tried to introduce a new criterion of requirement of a domicile certificate for registration of a patient for enrolling him on the State List for organ transplant. The Rules nowhere provide for such criterion. At the cost of repetition in fact Rule 31(4)(6) provides that a patient may get registered through any transplant center but only one center of a State or a region. The introduction of such criteria by a guideline, in the nature of executive instructions is in colorable exercise of powers."

"Paragraph 13.1 and 13.10 (C) of the Gujarat Deceased Donor Organ and Tissue Transplantation Guidelines (G – DOT) are held to be ultra-vires the provisions of the Transplantation of Human Organs Act, 1994, and Transplantation of Human Organs and Tissues Rules 2014. They are held to be unconstitutional, unreasonable and in violation of fundamental rights under Articles 14 and 21 of the Constitution of India," it further noted.

Therefore, providing relief to the petitioners, the bench ordered,

"In light of the paragraphs 13.1 and 13.10(C) of G-DOT guidelines being so declared illegal, the need to have a domicile certificate in order to be registered as a recipient on the State list for cadaveric transplant of an organ in Gujarat is held to be illegal and unconstitutional and the respondent State is directed to register the petitioners and such other recipients for cadaveric transplant of organs without the conditions of submitting a domicile certificate."

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/gujarat-hc-191634.pdf

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