Organ donation: no child’s play

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Recently, the Delhi High Court was approached by Saurav Suman, a 17 year and nine month old class XII student. He was wronged by an order issued by the competent authority of the Institute of Liver and Biliary Sciences (ILBS), in which they refused to grant him permission to donate part of his liver to his sick father.

The legislation on organ donation and transplantation is the Human Organs and Tissue Transplantation Act 1994, as well as the Human Organs and Tissue Transplantation Rules 2014. According to section 2 (f) of the law, a donor is “any person, at least eighteen years of age, who voluntarily authorizes the removal of any of their human organs for therapeutic purposes under the subsection (1) or subsection (2) of section 3 ”. But according to rule 5 (3) (g) of these rules, there is no legal prohibition on organ donation by a minor. It states: “The donation of living organs or tissues by minors will not be allowed, except for exceptional medical reasons, to be recorded in detail with full justification and with the prior approval of the competent authority and the government. of the State concerned. “

There have been other similar cases. In 2019, the Delhi High Court was approached by a Bangladeshi man in urgent need of a liver transplant. He asked his 17-year-old and six-month-old son for permission to donate part of his liver. A single judge training of Judge Vibhu Bakhru estimated that “a minor can donate organs in exceptional medical circumstances. The only question that needs to be addressed concerns the risk to the minor and whether the circumstances are sufficient to make an exception under the provisions of Rule 5 (3) (g) of the Regulations ”. The court ordered the director of the All India Institute of Medical Sciences to form a medical board to assess the risks associated with such a donation. The board’s findings suggested a long-term negative effect on the minor donor and, therefore, the petition was withdrawn.

In 2020, the Delhi High Court welcomed the plea of ​​a 17 year old and 10 month old girl seeking to donate part of her liver to her father who suffered from liver failure. A single judge bench of Judge Sanjeev Sachdeva asked the director of Max Super Specialty Hospital, Saket, to form a committee to assess the risk associated with the donation. The committee was of the opinion that there could be a potential negative impact on the physical and psychological health of the minor in the short term as well as in the long term by donating part of the liver to her father. The petitioner did not insist further on the petition and it was therefore dropped after putting the petitioner’s father on the list of “super urgent cases”.

Before Suman, her mother and brother had applied for a donation, but this was not successful due to medical incompatibilities. Other members of her extended family were unwilling to donate part of their liver. As a last resort, Suman requested the donation and was certified as compatible. Subsequently, he made a request to the competent authority of ILBS to ask for permission to donate part of his liver to his father, but this was refused because he was a minor, while ‘he was only three months of the age of majority.

As of September 8, 2021, the model’s score for end-stage liver disease was 28 for his father, which is the last stage of liver disease and without an urgent transplant, there was no hope for him.

Attorney Prasoon Kumar, appearing on behalf of Suman, argued that the Transplantation of Human Organs and Tissues Rules, 2014, does not impose a complete embargo on organ donation by minors and that the competent authority of ILBS had not applied its mind as Suman was due to come of age within three months.

On September 27, 2021, a single-judge panel of Judge Rekha Palli annulled the order of August 28, 2021, adopted by the competent authority, the ILBS. The Court further ordered the Secretary of Health and Family Welfare to consider the request within two days, taking into account the serious medical emergency facing the applicant’s father and the fact that the applicant was about to turn 18 within three months.

Dr Sonal Asthana, clinical manager for hepato-pancreatic-biliary and multiorgan transplant surgery at Aster CMI Hospital, told India Legal: “In this case, the potential donor is a minor. Donors undergo a thorough physical and mental assessment. Surgery for liver donation is largely safe, but carries the possibility of a small but significant operative risk, including life-threatening risk, which is estimated at 0.3%.

Liver transplantation, by itself, if done in a timely and appropriate manner, has a success rate of over 90%, he said. After donation, the residual liver usually regenerates within 5 to 6 weeks. Risks from the surgery can include bleeding, infection, discharge, blockages of vessels and / or bile ducts, he added. These can lead to a longer stay in intensive care. However, liver transplant patients generally enjoy good long-term results, with survival periods of 10 to 15 years.

With respect to donation by a minor, there are fixed guidelines outlining the exact age of consent for medical or surgical treatment. “In India, ‘majority’ is reached at 18 and considered the legal age for consenting to treatment under Indian Majority Law, Guardians and Wards Law and Contract Law Indians. A child under 12 cannot give consent, and parents / guardians can consent to their medical / surgical procedures. A child between 12 and 18 can only give consent for a medical examination, but not for any procedure. A legal age of 18 has been set for consenting to termination of pregnancy, blood donation and organ donation.

However, organ donation is unlike any other medical procedure, as the potential donor voluntarily consents to a procedure that involves risks, but has no physical benefit other than the emotional satisfaction of saving a being’s life. Dear. This decision effectively lowers the age of informed consent for proceedings.

So, is the court right to denounce the doctors for not allowing a minor to donate in order to save his father’s life? Asthana said: “The decision to accept a donor is ultimately made by the competent authority or the authorization committee, not by the transplant team. These decisions are taken according to existing standards. The age of consent for any surgery is set at 18 years. Reducing this age will have implications unrelated to the transplant alone. “

—By Shashank Rai and India Legal News Service


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