Supreme Court expresses reservations over plea alleging that brain death certification violates right to life

A petition has been filed before the Supreme Court challenging the validity of brain death certification in India [Dr. S Ganapathy v. Union of India and ors].

The petitioner, Dr. S Ganapathy, appearing in person, told the Court that the concept of 'brain death' was coined by transplant surgeons to get organs. He argued that persons declared 'brain dead' (or those whose blood flow to the brain stops) are not actually dead.

He argued that, therefore, the present brain death certification enables the transplantation of organs from those who are not dead.

This violates the right to life under Article 21 of the Constitution of India, he contended.

A Bench of Justices Surya Kant and Joymala Bagchi, however, expressed reservations about such a view and asked whether the Court can interfere in such matters.

"The Issue is completely a legislative question. The right to life has been circumscribed in earlier judgments (which recognise) the right to abort (unwanted pregnancies) and passive euthanasia. All these are intrusions into the right to life in medical science. To ensure the effective transplantation of organs, irreversible cessation of brain activity treated as brain death. How can courts replace what legislature has considered?" the Court asked.

The Bench further observed that organ donation is a way of perpetuating life for others when the donor is past the point of any hope of recovery.

"When a person is irreversibly beyond the scope of recovery.. those organs can be a hope and it perpetuates life (for recipients of the donated organs)," Justice Bagchi orally remarked.

He added that the same is not an intrusion into the right to life under Article 21 of the Constitution of India.

"We can only enforce the Constitution ... This (brain death certification) is not an unlawful intrusion into Article 21. We cannot second guess the legislature for defining what is brain dead," Justice Bagchi said.

"We may agree with you... But there is the doctrine of separation of powers... How do we direct parliament?" Justice Kant asked.

The Bench, however, ultimately said it will consider the matter further after deciding a similar pending case.

The petition before the Supreme Court challenges a February 10 Kerala High Court judgment that dismissed Dr. Ganapathy's plea.

Dr. Ganapathy had challenged the validity of brain death certification in India and the constitutional validity of Sections 2(d) and 2(e) of the Transplantation of Human Organs and Tissues Act, 1994 (THOTA), which deal with what a brain death entails

Dr. Ganapathy claimed that the procedures followed in India for certifying a person as brain dead under THOTA lacked uniform scientific backing.

He also cited instances where patients declared brain dead had later regained consciousness or even given birth while on life support, which he said raised questions about the reliability of the existing system

However, the High Court had dismissed the petition, observing that the courts cannot review the legislature's views on such matters, it said.

"The Court's hands are tied. Parliament, in its wisdom, recognizes brain death through a definite medical procedure. It signifies that brain death is recognised in India, and the concept of brain death cannot be reviewed by the Court," the High Court's judgment stated.

Before the Supreme Court today, Dr.Ganpathy reiterated his contentions, saying,

"It is a body with a bearing heart. How do we call them brain dead? ... This is the biggest industry in the world.. The illegal organ transplant...You cannot kill a person to help others."

Justice Kant initially advised Dr. Ganapathy to send a representation to the National Medical Commission or such authorities, who may be in a better position to examine such scientific matters.

The Court suggested he could also visit the All India Institute of Medical Sciences (AIIMS) in Delhi and speak to its Director, M Srinivas.

The Court went on to note that the concept of death may have different starting points. When it comes to deciding whether a person's organs can be transplanted to another person's body, the reference point is brain death, the Court observed.

"The idea of death in a medico legal sense has different starting points. There is cardio vascular death.. cellular death etc. Different points of life going out of human body...We cannot substitute it with our interpretation ... You can persuade the ministry," Justice Bagchi suggested.

However, Dr. Ganapathy urged the Court to consider the matter, which it eventually agreed to do.