Saturday, August 27, 2016

Organ Donation - Imperatives for preparing the whole family

Organ Donation - Two unusual cases

Organ donations come with different types of problems, We have two examples here: one, where the spouse was objecting to donation of a portion of liver by her husband to his father and two, a person wanting to donate his body immediately for research, when the hospital declined on the ground that a living person cannot donate his own body. The results in these judicial decisions have been reasonably predictable. 

 The Andhra Pradesh High Court confronted a curious situation in Suma Kiran Malena v Secretary Medical and Health and others (2007),where the wife of the donor filed a writ petition challenging the decision of her husband to donate a portion of the liver to his father, who was reportedly suffering from decompensated cirrhosis of liver, an incurable HCV-related liver function. The Court rejected the petition as not maintainable, holding that no legal right existed for the wife to prevent her husband’s decision! The court ruled that case had been filed on two wrong assumptions: that her husband’s affection towards his parent should be subservient to the marital relationship between him and the petitioner, and that he could not donate his organs without her consent. Though the case was lost, it signals an important aspect that has to be factored at all times that consent for transplant is desirable of all members of the family, by counselling and if need be, by persuasion, if the individual donor has already signified his consent. 

By no stretch of imagination can the Act that makes possible organ donation be taken as allowing someone else’s life to be taken to save one’s own. In C.A. Thomas Master v. Union of India (UOI ) and Ors (2000)  the petitioner claimed that he had approached some of the medical institutions under the control of the state government, including the District Hospital, Thirssur, seeking help to facilitate his voluntary death and for donation of his organs, including the heart, kidneys, and eyes. His request was not taken seriously and he was told that none of the hospitals under the state government had such facilities to enable the petitioner to voluntarily cause his death, which would not be suicide. The petitioner therefore approached the high court of Kerala for the issuance of a writ of mandamus commanding the respondents to start ‘Mahaprasthana Kendra’ or voluntary death clinics in each district Hospital so as to facilitate voluntary death and donation of bodily organs as well as their transplantation. There was a further prayer for a direction to the respondents to appoint a commission to study the practice of voluntary death in ancient India and to suggest methods for its practice in the context of  environmental changes and technological advancement. The petitioner also prayed for a direction to the respondents to set apart funds and set up infrastructure for assisting voluntary organizations that are willing to facilitate voluntary deaths and the donation of bodily organs. The court said that in the absence of any legislation, and in view of the decision of the Supreme Court in Gian Kaur’s case upholding the provision in the IPC making the attempt to suicide as an offence, no distinction could be made between suicide as ordinarily understood and the right to voluntarily end one’s life as distinguished by the petitioner. Now even an attempt to suicide has been de-criminalised by repealing s 309 IPC, but the effect would be the same. The doctor cannot be commanded to take away the life of a healthy person only in order to facilitate organ donation.

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