Now, a person from outside Gujarat may register on the state’s list of organ recipients without a domicile certificate. In an important judgment, the Gujarat high court on Monday quashed the state government’s policy giving preference to residents of Gujarat in transplantation of organs from cadavers under provisions of the Transplantation of Human Organs and Tissues Act, 1994.
Earlier, the state’s guidelines, particularly clauses 13.1 and 13.10 (c) of the Gujarat Deceased Donor Organ and Tissue Transplantation Guidelines (G-DOT) said that without Gujarat domiciliary status, a person does not get priority on the list of recipients and cannot register on the state list.
The earlier policy was coming in the way of donating organs to a woman with Canadian citizenship who is living in Gujarat for the last 13 years. She, along with a woman from Jharkhand who has settled in Ahmedabad for the last seven years, is awaiting a kidney transplant. Yet another woman from Madhya Pradesh is in need of a liver transplant.
Justice Biren Vaishnav held that these two clauses of G-DOT are against provisions of the Act and rules. The court further said that the rules provides that a patient may register through any transplant centre, but only one centre of state or a region. “The introduction of such criteria by a guideline, in the nature of executive instructions is a colourable exercise of powers… They are held to be unconstitutional, unreasonable and in violation of fundamental rights under Articles 14 and 21 of the Constitution of India,” the order reads.
The state government defended its policy of preference to locals in cadaver transplants arguing that this was to prevent commercialisation of organ transplants and to prevent organ transplant tourism. The measure was adopted because of a shortage of donations, the state government had said.
The court did not agree with the argument and said that the purpose of Act is to prevent organ trade. “… the purpose of the Act and the Rules was never to restrain medical treatment to the domiciles of a state. While interpreting Article 21 of the Constitution of India, the apex court held that the ‘Right to Health’ is an integral part of the ‘Right to Life’ and the state has a constitutional obligation to provide health facilities. Denial of medical treatment to petitioners who are not domiciles of Gujarat is illegal and unconstitutional,” the court observed.
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