Taking note of the "peculiar circumstance", the Supreme Court has come to the rescue of a three-year-old United States citizen in critical need of liver transplant by permitting his distant Indian cousin to donate the organ, saying it would not consider adherence of legal requirement in "absolute terms" for saving live in this case.
The court, however, made it clear that its decision will not be treated as "precedent for any other case".
Faced with a legal question in the form of section 9 of the Transplantation of Human Organs and Tissues Act (THOTA), which bars donation of an organ to a foreigner by his distant Indian relative, the top court carved out the case-specific exception to facilitate the liver donation.
"In our opinion, the instant case would not be an appropriate case to consider the same in detail," a bench comprising justices A S Bopanna and M M Sundresh said.
It said in the peculiar circumstance, there was a choice for this court to choose "between saving the life of a three years old child i.e. the petitioner No.1 or adherence to the legal requirement in absolute terms".
Making it clear that its decision will not be treated as "precedent for any other case", the top court, in a compassionate verdict, accorded primacy to saving the life of the child who was admitted to a private hospital in Gurugram for treatment of decompensated biliary cirrhosis (DBC).
The DBC is a medical condition which results from liver failure and a patient can be saved by the transplant only.
The bench was to deal with section 9 of THOTA which was coming in the way of liver donation to the child by his distant Indian cousin.
The section of THOTA bars transplant of organs where recipient is a foreigner and donor is not a "near relative". The term -- "near relative" includes "spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter".
A cousin is not included in the definition of "near relative".
The top court took note of the submissions of senior advocate Gopal Sankarnarayanan and lawyer Neha Rathi, who appeared for the petitioners -- the recipient and the donor.
The bench, in its November 9 order, noted the details of the case and the report of the authorisation committee which functions under the THOTA and authorises the transplant of organs if the donor and the recipient comply with the statutory requirements.
"At the outset, we clarify that though the provisions as contained in The Transplantation of Human Organs and Tissues Act, 1994 as also the Citizenship Act was referred to during the course of the submissions on either side, in our opinion, the instant case would not be an appropriate case to consider the same in detail," it said.
It took note of the immediate necessity of a donor to donate the liver to child in view of his precarious health condition and asked the parties to go through the legal process as contemplated.
"Further, the reasons have also been ascertained as to why the parents of the petitioner No. 1 (recipient) have not donated the liver. Though specific reasons have not been disclosed, it would be appropriate to take note of the sentiment of the mother of the petitioner No. 1 and in that regard, exempt the parents in any event since in the instant case there is an appropriate donor who is a relative and since this Court is also satisfied with regard to the bona fides in this case and in the peculiar circumstance where the choice for this Court is between saving the life of three years old child i.e. the petitioner No.1 or adherence to the legal requirement in absolute terms," the bench said.
It said in the peculiar facts and circumstances of the instant case, the order permitting the distant cousin to donate liver cannot be treated as a precedent for any other case.
On November 2, the bench had deferred the hearing on the plea seeking its approval for liver donation by a person to a three-year-old cousin suffering from chronic liver disease.
The petition was listed before the bench after Chief Justice D Y Chandrachud took note of the urgency. Additional Solicitor General Aishwarya Bhati was asked to assist the bench on behalf of the Centre.
The child, who is a US citizen and OCI (overseas citizen of India) card holder, is suffering from liver failure and needs to undergo a transplant to save his life.
After the parents of the child were declared unfit for donation, the cousin volunteered but section 9 of the law was coming in the way.
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