Writ Petition (L) No. 2831 of 2011. Case: Miss. Sonia Ajit Vayklip and Anr Vs Hospital Committee, Lilavati Hospital and Research Centre and Ors. High Court of Bombay (India)
| Case Number | Writ Petition (L) No. 2831 of 2011 |
| Counsel | For Petitioner: R. A. Shaikh with M. M. Khan, Adv. and For Respondents: Jay Kansara i/by Vidhi Partners, G. W. Mattos, AGP |
| Judges | M. S. Shah , C.J. and Smt. Roshan Dalvi , J. |
| Issue | Transplantation of Human Organs Act (42 of 1994) - Sections 3, 9 |
| Citation | AIR 2012 Bom 93 |
| Judgement Date | January 18, 2012 |
| Court | High Court of Bombay (India) |
Judgment:
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In this writ petition under Article 226 of the Constitution, the petitioner No.1, a tribal lady from Chhattisgarh, has challenged the decision of the respondents herein refusing to grant approval for transplantation of her kidney to the body of her younger brother Deekap Ajeet Vayklip.
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Respondent No.1 Hospital Committee of Lilavati Hospital and Research Centre, Bandra, Bandra (W), Mumbai by the impugned communication dated 9 November, 2011 (Exhibit-G) held that the petitioner cannot be accepted as an appropriate donor on the ground that the petitioner No.1's verbal IQ (VIQ) was 56, Performance IQ(IQ) was 50 and Full Scale IQ (FSIQ) was also 50, whereas the average is between 80 to 100.
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During the pendency of the petition, we directed by our order dated 23 December, 2011 that the petitioners' case may be considered by the State Authorization Committee under Director of Medical Education, Maharashtra State. By their report dated 4 January, 2012, the Authorization Committee and the Chairman of the Authorization Committee and Director of Medical Education and Research, Mumbai have not granted permission to the petitioner No.1 for donating her kidney to her brother-Deepak Ajeet on the ground of mental status of the petitioner No.1 and also on the ground that the petitioner donor is suffering from Right kidney stones and Ureteric stones for which Lithotripsy and D.J. stenting has been done in July-August 2011 and that ultra sonography done in July 2011 shows evidence of stone in right kidney and Ureter with D.J. Stent.
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Today, the learned counsel for the petitioners has tendered affidavit of Dr. Bharat V. Shah, M.D., DNB (Nephrology) who is heading the medical team which proposes to undertake transplantation of kidney of the petitioner No.1.
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The learned counsel for the petitioners has submitted that as regards the objection raised by the Authorization Committee that petitioner No.1 should be treated as mentally retarded person, there is no justification for taking such a view. It is submitted that this Court had already questioned the petitioner No.1 on 23 December, 2011 and this Court had already recorded the reasons for prima facie taking a view that the petitioner is aware that she is donating one of her kidneys to her younger brother. It is submitted that petitioner No.1 is a tribal from Chhattisgarh and that considering her education and social background, she would not be in a position to answer the questions put by the Hospital Committee or the Authorization Committee in the manner in which the committee members residing in Mumbai would expect a lady of her age to answer. It is submitted that merely on that ground petitioner No.1 could not be considered as mentally retarded person. Secondly, it is vehementally submitted that the petitioners have placed credible material on record proving that the petitioner No.1 (donor) is the elder sister of petitioner No.2 (donee). Hence nothing further was required to be done by the hospital committee or the authorization committee. It is submitted by the learned counsel for the petitioners that the object of the Transplantation of Human Organs and Tissues Act, 1994 is only to prevent commercial dealings in human organs and tissues and, therefore, the legislative scheme is that only in cases where the donor is not a near relative of the recipient as defined by the Act, the Authorization Committee and/or the Hospital Committee are required to make enquiry about the motive for donation of the human organ. Reliance is placed on the definition of the word "near relative" as provided in Section 2(i) of the Act. The said definition indicates that "near relative" includes brother and sister and therefore, petitioner No.1 being elder sister of petitioner No.2, there is no restriction under the Act against the donation of one of the kidneys of petitioner No.1 sister for petitioner No.2 brother for therapeutic purposes. It is submitted that no committee or authority has challenged the relationship between the petitioners. On the contrary in the latest report dated 4 January, 2012 the Authorization Committee- respondent No.2 herein has stated as under:
"Mr. Ajit Vayklip, father of donor-Ms.Sonia Vayklip has not given his affidavit about his consent for kidney donation by his daughter-Ms. Sonia to his son Mr.Deepak Vayklip".
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The learned counsel for the petitioners has also heavily relied on the affidavit of Dr. Bharat V. Shah, M.D., DNB (Nephrology) indicating that there is no better suitable donor in the family and that there is 100% matching of tissue type of recipient-petitioner No.2 and petitioner No.1 donor...
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