A Public Interest Litigation has been filed in the Supreme Court challenging the constitutional validity of Rule 5(4)(a) and Rule 5(4)(b) of the Transplantation of Human Organs and Tissues Rules, 2014.
Filed by the father of minor Kavish Garg on his behalf, the petition sought stay on Rule 5(4)(a) and Rule 5(4)(b) on the grounds that they were ultra vires of the Transplantation of Human Organs and Tissues Act, 1994.
It further said the impugned rules were made in excess of the power conferred by THOTA and were in direct conflict with Section 3(1) and Section 3(4) of the Act.
As per the plea, these Impugned Rules were in violation of Articles 13, 14 and 21 of the Constitution of India because they violated the right to bodily integrity of deceased organ donors.
Filed under Article 32 of the Constitution of India by Advocate-on-Record (AoR) Ajit Sharma, the petition contended that while THOTA required that donor’s wish be respected after his/ her death in so far as donation of his/ her organs were concerned, however, the Rules framed under THOTA permitted the near relatives of the deceased to veto the donor’s wish and prevent organ removal upon the death of the donor.
This was not only a direct infringement of the right of the deceased, a concept now recognized by the Indian courts, but such Rules eere ultra vires the provisions of THOTA, it added.
It said since the Impugned Rules violated the fundamental rights of deceased donors, such as the right to bodily integrity, the right to privacy, the right to self-determination and the right to equality before the law, they were void in terms of Article 13 of the Constitution.
It requested the Apex Court to stay the Rule 5(4)(a) and Rule 5(4)(b) of the Transplantation of Human Organs and Tissue(s) Rules, 2014 to be unconstitutional, null and void and ultra vires of Articles 13, 14 and 21 of the Constitution of India.
The plea further suggested establishment of an organisation to distribute donor documents, which should then be signed by the donor and two competent witnesses.
It said this document should be filed as a legally valid document. The personal information of the donor, for example his or her identification number should then be electronically recorded on an application for a smartphone.
If the person should then die in a manner that his or her organs could be used for transplantation, the medical staff in the intensive care unit should utilise the application, using the deceased identification number to verify whether he or she was a valid organ donor according to the Act. If it was the case, the hospital should respect his or her wishes and take the organs to be used for transplantation, noted the plea.
It said the family of the deceased could be informed of the·process and their authorisation towards the donation could be recorded, but they were not expected or required to give consent.
Should there be a scenario where the family members were unhappy about the process, the hospital staff should explain to them the validity of donation according to the stipulations in the NHA19.
If the family should still institute legal action, it should be clear that a court of law will determine whether there was in fact a legally signed document in existence and if that was the case, then the family would have no cause for action.
Stating that more good followed from a process of organ retrieval and eight lives could be saved, the petition said it was better than overruling the donor’s wish by the preconceived views of the family.
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