Bombay High Court : Need For Organ Transplant Is A Facet Of Right To Life | Separate Registration List To Be Considered For Patients With Imminent Transplant Need
Safiya Malik
The High Court of Judicature at Bombay Division Bench of Justice G.S. Kulkarni and Justice Advait M. Sethna has directed the concerned authorities to consider providing a separate registration facility for patients who may imminently require an organ transplant. The Court held that the statutory and constitutional rights of such patients must remain protected and that appropriate consideration should be extended towards creating a mechanism to recognize and register patients who, though not presently on dialysis, may face imminent need for kidney transplantation in the near future. The matter has been adjourned to 17 June 2025 for further consideration and compliance.
The writ petition concerns an issue under the Transplantation of Human Organs and Tissues Act, 1994 ("1994 Act"). The petitioner is certified as a patient of Chronic Kidney Disease (CKD) Stage V due to polycystic kidney disease but is not yet on dialysis. Facing the reality of needing a cadaveric kidney transplant in the near future, the petitioner sought registration with the Zonal Transplant Coordination Centre (ZTCC), Pune.
The ZTCC, however, declined the request citing the "Allocation Criteria for Deceased Donor Kidney Transplant Guidelines." These guidelines stipulate that a recipient should be a case of End Stage Renal Disease (ESRD) on maintenance dialysis for more than three months to qualify for registration. The guidelines outline allocation principles, including city-based allocation, priority for urgent cases, and blood group compatibility. Notably, urgent listing is reserved for patients without dialysis access or those with a high Panel Reactive Antibody (PRA) level exceeding 90%.
The petitioner contended that his exclusion from registration was prejudicial. Although not immediately dependent on dialysis, he argued that it was only a matter of time before he would require a transplant. He maintained that forcing him to wait until dialysis commenced would subject him to an unreasonable burden and jeopardize his right to life, guaranteed under Article 21 of the Constitution of India.
Further, the petitioner submitted that the guidelines, being subordinate to the 1994 Act, could not override the fundamental right to receive lifesaving treatment. It was his contention that patients like himself — who are likely to need an organ transplant imminently — should be registered and allowed to advance in the queue based on seniority, pending medical certification at the time of need.
The petitioner, through counsel Dr. Uday Warunjikar, submitted that the guidelines, by their rigidity, failed to accommodate patients whose condition did not yet meet the strict eligibility criteria but who faced inevitable transplant needs. The State and Respondents, represented by Ms. Neha Bhide, GP with Ms. P. J. Gavhane, AGP, as well as Mrs. Shehnaz Bharucha for Respondents 3 and 4, defended the guidelines, asserting their purpose in maintaining fairness and systematic allocation
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However, the petitioner maintained that denying registration until dialysis commenced was arbitrary, unjust, and violative of his statutory and constitutional entitlements.
The Division Bench observed that “the guidelines in no manner would supersede the substantive legislation, namely, the 1994 Act.” The Court recognized the petitioner's argument that “the human need for an organ transplant is directly a facet of right to life as guaranteed under Article 21 of the Constitution of India.”
The Court recorded that “prima facie, a situation cannot be countenanced that when for any patient there is a need of an organ transplant, which might not be immediate but is imminent and/or in a situation that the patient is immediately not on dialysis, however, it is certain that in the near future the need for a transplant would arise, such situation would also be required to be paid attention by the respondents.”
Noting the objectives and purposes behind the 1994 Act, the Bench stated that “the object and intention of the Act is to provide for the regulation of removal, storage and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto.”
Accordingly, the Court observed that “the provisions of the rules and any guidelines framed thereunder are required to be interpreted and recognized in such context when it concerns kidney/organ transplant.”
The judges clarified that “the consideration of these issues and/or framing of rules and guidelines is the domain of the respondents,” yet also recorded, “our concerns in the present proceedings is limited, and to the effect that the statutory and Constitutional rights of the petitioner are recognized and remain protected.”
In sum, the Court observed that while rule-making and guideline framing rested with authorities, it was essential that the rights of patients in imminent need of transplantation not be overlooked.
The Division Bench, after considering the submissions, directed the respondents to examine the possibility of establishing a separate registration facility for patients who may imminently require an organ transplant.
The Court recorded that it would be appropriate for the authorities to consider whether such patients, who in the future are likely to need a transplant, could be registered so that when the requirement arises, the list could be activated based on proper medical certification, enabling them to be recognized for receiving an organ.
The Court further noted that ease of procedure for such patients was a significant consideration, as this would alleviate the hardship of seeking registration only after the patient’s condition had deteriorated or become critical.
Recognizing the delicate and worrisome stage of health such patients face, the judges observed that any process concerning this essential registration must be straightforward and comforting.
Accordingly, the Court directed that an appropriate response on the matter be placed before it on the adjourned date. The hearing has been scheduled to continue on 17 June 2025.
Advocates Representing the Parties
For the Petitioners: Dr. Uday Warunjikar with Mr. Jenish Jain and Mr. Dilip Pandharpate i/b Mr. Siddhesh Pilankar
For the Respondents: Ms. Neha Bhide, GP with Ms. P. J. Gavhane, AGP for State; Mrs. Shehnaz Bharucha i/b Mr. A. A. Ansari
Case Title: Mr. Harshad Rohidas Bhoite vs. State of Maharashtra & Ors.
Case Number: Writ Petition No. 3048 of 2024
Bench: Justice G. S. Kulkarni and Justice Advait M. Sethna
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