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The court said the state cannot restrain the right to health and right to life to its domiciles only. This right is available to a person and not restricted to a citizen.
With this, a person from outside Gujarat may register on the state’s list of organ recipients without a domicile certificate. The state’s present guidelines, particularly clauses 13.1 and 13.10 (c) of the Gujarat Deceased Donor Organ and Tissue Transplantation Guidelines (G-DOT) say that without Gujarat domiciliary status, a person does not get priority on the list of recipients and cannot register on the state list.
Justice Biren Vaishnav held that these two clauses of G-DOT are against provisions of the Act and rules. “By way of paragraph No.13(1) and 13(10)(C), the state has tried to introduce a new criterion of requirement of a domicile certificate for registration of a patient to enrol him on the state list for organ transplant. The rules nowhere provide for such criterion,” the court said.
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.
Three petitions were filed in the HC.
One was by a Canadian citizen, Hemali Ajmera, who requires a kidney transplant. She has lived in India for 13 years, but since she was refused a domicile certificate her name was not registered on the state list and not get preference. The second petition was by Vidhya Shah, of Gujarati descent but a resident of Madhya Pradesh, who requires a liver transplant.
The third petitioner was Himanshu Shekhar from Jharkhand, who needs a kidney. He has worked and lived in Ahmedabad for seven years. Their names were not registered on the list of recipients because they are not Gujarat domiciles.
Their names were registered by the State Organ and Tissue Transplantation Organisation (SOTTO) on the HC’s interim orders.
However, the state government defended its policy of preference to locals in cadaver transplants arguing that this was to prevent commercialization 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 restraint 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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