Kerala Doctor claims Brain Death a fictitious concept devised for organ trade, SC suggests approach NMC instead

The petition before the top court bench was filed by a Kerala-based doctor, Dr S Ganapathy, who advanced a theory that 'brain death' was a fictitious concept, devised by doctors to facilitate organ trade, reports LiveLaw.

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Appealing against a Kerala High Court order, the doctor informed the Apex Court bench that the concept of brain death and certification in India is unscientific and it violates Article 21 of the Constitution. He argued that Sections 2(d) and 2(e) THOTA, relatable to brain death, are unconstitutional, the Times of India has reported.

While section 2(d) provided the meaning of 'brain-stem-death' as a stage when all functions of the brainstem have ceased permanently and irreversibly, section 2(e) provided that 'deceased person' means a person in whom permanent disappearance of all evidence of life occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time after live birth has taken place.

Section 2(d) of the 1004 Act defines "brain-stem death" as the stage at which all functions of the brain-stem have permanently and irreversible ceased and "is so certified under sub-section (6) of section 3"

Section 3(6) provides, "Where any human organ or tissue or both is to be removed from the body of a person in the event of his brain-stem death, no such removal shall be undertaken unless such death is certified, in such form and in such manner and on satisfaction of such conditions and requirements as may be prescribed by a Board of medical experts..."

An independent registered medical practitioner, a specialist, must be included in this board and the specialist will be nominated by the registered medical practitioner in charge of the hospital in which brain-stem death has occurred, from a panel of approved names.

As the petitioner continued to explain brain-stem death, and its different meanings in different countries, the Apex Court bench observed,

 "It is almost impossible for us to understand the medical terminologies you use. Why don’t you make a presentation on this before the National Medical Commission or experts from the health ministry?"

"Ultimately, even if the court or the authorities accept your definition of brain death, ultimately it would require the government to move a Bill in Parliament to amend the law. Can SC direct Parliament to amend a law? Will it not violate the Constitution-mandated separation of power," asked the bench.

"This is a medical issue. You have long experience and you understand the subject well. Why don't you make representation to National Medical Commission or any other body, whom we can request to examine? Ultimately, it would require legislative intervention. We may agree with you, but we have our limitations (can't direct Parliament)..." Justice Kant observed.

As per the latest media report by Live Law, in a similar spirit, Justice Bagchi conveyed that the Court cannot second-guess the legislature, which has defined the point at which there is irreversible cessation of brain activity as the point of cessation of human life.

"In order to ensure an effective transplantation and availability of organs, if a definition which is in consonance with the irreversible cessation of brain activity is treated as the point of cessation of human life...it can't be said to be in violation of Article 21...we can't second-guess legislature, we can only enforce constitutional rights...how can Courts replace it with something else than what the legislature considers appropriate? We acknowledged passive euthanasia..." observed the Court.

The judge further added that in genuine cases, the transplantation of organs of brain-dead persons maintains life.

"Idea of death in a medico-legal sense has various starting points. There's cardio-vascular death, cellular death...definition of death is a starting point...if Parliament chooses a point for brain death as a point where transplantation may be permitted, we may not be able to substitute it even if we feel you have a persuasive argument. Better you pursue the Ministry...idea of death has a spectrum...here Parliament defines it as brain death. It can't be said to be alien to medical or legal principles," observed the bench.

At this outset, the petitioner, who appeared in person, recapitulated a speech given by CJI BR Gavai last week and questioned where one could go if the Parliament violates the Constitution.

"Last week, CJI was addressing the bar association in Amravati and said that people seem to think that in a democracy, Parliament is supreme. But it is not. Constitution is supreme. If Parliament violates basic principles of Constitution, judiciary must intervene," submitted the petitioner.

The petitioner further argued that "brain death" is a misnomer, a term coined to secure organs of those who are not really dead. Further, he alleged that there is connivance between hospitals and those in need of organs, due to which people who are not really dead are declared "brain dead", so that their organs can be transplanted.

He also claimed that only the poor patients are declared brain-dead to enable harvesting of the organs for other rich patients and asked, "Why is it that hospitals declare only poor patients as brain-dead and not the kin of a SC judge, advocate or a rich and influential person."

However, the bench pointed out that the concerns about connivance are allayed by the provision requiring certification of a brain death case by an independent medical professional. 

Taking note of the fact that the case raised more of an ethical issue, Justice Kant suggested that the petitioner go to AIIMS and meet Dr Srinivasan, to see if the institute could recommend something to the government.

"We request you to go to AIIMS, Dr Srinivasan (Director of AIIMS) is there...if an institution can think of recommending to government that amendment is required..." Justice Kant observed. However, the petitioner expressed that his prayers would not be supported by any doctor.

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