NEW DELHI: A Supreme Court bench on Tuesday allowed an Indian to donate his liver to his three-year old US-based cousin who needs to undergo a transplant to save his life as Indian laws prohibit it. The three-year-old, a US national and a Overseas Citizen of India card holder, could not get a transplant from his Indian cousin as he is not a “near relative”, according to section 9 of Transplantation of Human Organs and Tissues Act.
As per the Act near relatives include spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter. A cousin does not fall within the definition of a near relative.
Noting the primacy to saving the life of the child, a bench of justices A S Bopanna and M M Sundresh said it is not an appropriate case to consider the legal requirement in absolute terms. The bench also clarified that the decision will not be treated as a “precedent for any other case”.
The child is at present admitted to a private hospital in Gurugram for treatment of decompensated biliary cirrhosis — a medical condition which results from liver failure, wherein a patient can be saved only by a transplant. Considering the submissions of senior advocate Gopal Sankarnarayanan and lawyer Neha Rathi, who appeared for the petitioners — the recipient and the donor, the bench noted the immediate necessity of a donor liver to the child in view of his precarious health condition and asked the parties to go through the legal process as contemplated.
“At the outset, we clarify that though the provisions as contained in THOTA 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,” the bench said in the order.