Madras High Court
Minor Vishvaadharshan Allu vs The Secretary To Government on 25 February, 2022
W.P.(MD)No.3704 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.02.2022
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P.(MD)No.3704 of 2022
Minor Vishvaadharshan Allu
represented by his Mother and Natural Guradian
Aswini Allu ... Petitioner
vs.
1.The Secretary to Government,
Medical and Family Welfare Department,
Secretariate, Fort St.George, Chennai.
2.The Director of Medical Education,
No.162, EVR Periyar Salai,
Kilpauk, Chennai – 600 010.
3.The Authorization Committee for Implemention
of Human Organ Transplantation by its
Chairman, Chennai.
4.M/s.Velammal Multi Speciality Hospital,
Madurai.
5.Ashok Nathan Allu ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Mandamus, to direct the respondents 1 to 3
herein to grant necessary approval for the Part Liver Transplantation to
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W.P.(MD)No.3704 of 2022
be performed for the donation of Part of Liver by Minor. Vishvaadarshan
Allu / Writ Petitioner to the 5th respondent / petitioner's father by the 4th
respondent/ Hospital, forthwith in the meeting scheduled on 25.02.2022.
For Petitioner :Mr.Niranjan S.Kumar
For R1 to R3 :Mr.G.V.Vairam Santhosh
Additional Government Pleader
*****
ORDER
This Writ Petition has been filed for a Mandamus seeking for a
direction to the respondents 1 to 3 to grant necessary approval for the
part liver transplantation to be performed for the donation of part of liver
by Minor.Vishvaadarshan Allu/Writ Petitioner to the 5th respondent/
petitioner's father by the 4th respondent/ Hospital, forthwith in the
meeting scheduled on 25.02.2022.
2.It is the case of the petitioner that he is the son of the fifth
respondent, who is suffering from acute on chronic liver failure.
According to the petitioner, the fifth respondent/father requires
immediate part liver transplantation. It is his case that only his liver
matches with the requirements of the fifth respondent. Despite various
attempts made to get donors, who match with the requirements of the
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W.P.(MD)No.3704 of 2022
fifth respondent, no one came forward to give their liver for
transplantation and none of the donors' liver also matched with the
requirements for the fifth respondent's liver transplantation. Only in such
circumstances, the petitioner has come forward to donate his part of liver
for the fifth respondent's part liver transplantation, which is required on
emergency basis.
3.Under Section 9 of the Transplantation of Human Organs and
Tissues Act, 1994, permission will have to be obtained from the
Authorisation Committee, who is the third respondent herein, for any
organ donation. However, since the petitioner is aged only 17 years and
10 months and is a minor, only in exceptional circumstances, organ
donation can be done by him as per Section 9(1)(b) of the Act. The
petitioner has already approached the Authorisation Committee, namely,
the third respondent herein. But, it is the case of the petitioner that
Authorisation Committee is hesitating to grant approval for organ
donation, since the petitioner is a minor. Therefore, under those
circumstances, this Writ Petition has been filed seeking the relief stated
supra.
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W.P.(MD)No.3704 of 2022
4.Heard Mr.Niranjan S.Kumar, learned Counsel for the petitioner
and Mr.G.V.Vairam Santhosh, learned Additional Government Pleader,
who takes notice on behalf of the respondents 1 to 3.
5.The learned Counsel for the petitioner drew the attention of this
Court to the various medical records of the fifth respondent, which have
been filed as documents along with the Writ Petition. In particular, he
drew the attention of this Court to the medical summary of the fifth
respondent and would submit that the part liver transplantation for the
fifth respondent is needed on emergency basis. According to him, the
fifth respondent is suffering from acute on chronic liver failure and he is
presently admitted in ICU at Velammal Multi Speciality Hospital,
Madurai and he requires immediate part liver transplantation to save his
life.
6.The following documents have been filed along with the Writ
Petition in support of the petitioner's case:
(a)Date of birth certificate of the petitioner
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W.P.(MD)No.3704 of 2022
(b)Relationship certificate issued by the Tahsildar to prove that the
petitioner is the son of the fifth respondent;
(c)Medical summary of Mr.Ashok Nathan Allu, to prove his
present medical condition;
(d)The fitness certificate of the petitioner;
(e)The Undertaking of Mr.Ashok Nathan Allu, dated 23.02.2022;
(f)The undertaking of Minor Vishvaadharshan Allu, dated
23.02.2022;
(g)The undertaking of Mrs.Ashwini Allu, the mother of the
petitioner and the wife of the fifth respondent, dated 23.02.2022;
7.As seen from the aforementioned documents, it is clear that the
fifth respondent requires immediate part liver transplantation to save his
life. The petitioner has also given an unconditional undertaking on
23.02.2022 giving his no objection for donating his part of the liver to his
father for his part liver transplantation in order to save his live. The
mother of the petitioner, Ashwini Alllu has also given an unconditional
undertaking giving her no objection for her son Vishvaadharshan Allu to
donate his part of the liver to his father, the fifth respondent herein, for
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W.P.(MD)No.3704 of 2022
his part liver transplantation. The petitioner's medical fitness to donate
his part of liver is also proved, as seen from the fitness certificate, dated
22.02.2022 issued by the fourth respondent herein.
8.Section 9(1)(b) of the Transplantation of Human Organs and
Tissues Act, 1994, reads as follows:
“9.Restriction on removal and transplantation of [human
organs or tissues or both]-.......
(1-B)No human organs or tissue or both shall be removed
from the body of a minor before his death for the purpose of
transplantation except in the manner as may be prescribed.
.....”
9.As seen from the above Section, in exceptional circumstances, a
minor can donate his organ to another person. Therefore, the
Authorisation Committee/the third respondent will have to take a call as
to whether the petitioner can donate his part of liver for the fifth
respondent's part liver transplantation. Since the third respondent has not
taken a call till date, the petitioner has filed this Writ Petition.
10.The medical records produced by the petitioner before this
Court clearly establish the fact that the fifth respondent immediately on
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W.P.(MD)No.3704 of 2022
emergency basis requires part liver transplantation. This being the case,
this Court, while exercising power under Article 226 of Constitution of
India, cannot shut its eyes, when the records placed before this Court
make it clear that the relief sought for by the petitioner has to be granted
on emergency basis and also the life of a person is at stake.
11.In support of the petitioner's contention, the learned Counsel for
the petitioner also drew the attention of this Court to a judgment of Delhi
High Court in similar circumstances in Anshita Bansal vs Secretary,
Ministry of Health and Family Welfare and others, in W.P.
(C)URGENT.6 of 2020, dated 01.04.2020. As seen from the said
judgment, that was also a case involving donation of liver by a minor of
aged 17 years and 10 months, as in the present case. In paragraphs 21
and 22 of the said judgment, the learned Single Judge of the Delhi High
Court has observed that there is no complete prohibition in a minor
donating an organ or tissue prior to attaining majority and the donation is
permissible in exceptional circumstances and in accordance with rules.
12.In the case on hand also, the petitioner has produced medical
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W.P.(MD)No.3704 of 2022
records to show that the petitioner is medically fit for donating his part of
the liver and it is also the case of the petitioner that except the petitioner,
there were no other donors, who match the requirements of the fifth
respondent for his part liver transplantation. Therefore, this Court is of
the considered view that the Court cannot shut its eyes, when it is clearly
established that the petitioner, who is none else than the son of the fifth
respondent, who requires part liver transplantation, must be permitted to
donate his part of liver to save the life of his own father. The donation of
the part of liver by the petitioner to the fifth respondent will also not
cause any potential health risk to the petitioner, as seen from the medical
records.
13.It is also informed by the learned Counsel for the petitioner that
the respondent Committee sits once in two months only. This being the
case, he has also informed this Court that the sitting of the third
respondent Committee is taking place today, ie., on 25.02.2022.
14.After giving due consideration to the aforementioned factors,
necessarily this Court will have to allow this Writ Petition, as there is a
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W.P.(MD)No.3704 of 2022
medical emergency for the fifth respondent to get part of the liver
transplantation from the petitioner, who is none else than his own son.
15.For the foregoing reasons, this Court directs the third
respondent to grant necessary approval for the part liver transplantation
to be performed for the donation of part liver by the Minor
Vishvaadharshan Allu/the Writ Petitioner, to the fifth
respondent/petitioner's father by the fourth respondent Hospital forthwith
in the meeting scheduled to be held today, ie., on 25.02.2022 and pass
appropriate orders accordingly to enable the fifth respondent to get part
liver transplantation done forthwith.
16.With the above observation, this Writ Petition is allowed. No
costs.
Index :Yes / No 25.02.2022
Internet :Yes
cmr
Note:Issue order copy on 25.02.2022
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W.P.(MD)No.3704 of 2022
To
1.The Secretary to Government,
Medical and Family Welfare Department,
Secretariate, Fort St.George, Chennai.
2.The Director of Medical Education,
No.162, EVR Periyar Salai,
Kilpauk, Chennai – 600 010.
3.The Authorization Committee for Implemention
of Human Organ Transplantation by its
Chairman, Chennai.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.3704 of 2022
ABDUL QUDDHOSE, J.
cmr
Order made in
W.P.(MD)No.3704 of 2022
25.02.2022
https://www.mhc.tn.gov.in/judis
