Concept of ‘brain-dead’ unscientific, says petitioner: SC struggles to understand medical jargon, adjourns hearing

NEW DELHI: Attuned to understand the legal jargons, a two-judge bench of the Supreme Court on Monday found it difficult to digest the medical terminology saturated arguments of a doctor who challenged the validity of the definition of brain-dead in the Transplantation of Organs and Tissues Act (THOTA), 1994.Appealing against a Kerala HC judgment, Dr S Ganapathy told a bench of Justices Surya Kant and Joymalya Bagchi that the concept of brain death and certification in India is unscientific and is violative of Article 21 of the Constitution. He said Sections 2(d) and 2(e) THOTA, relatable to brain death, are unconstitutional.Section 2(d) provided the meaning of ‘brain-stem-death’ as a stage when all functions of the brainstem have ceased permanently and irreversibly. Sec 2(e) provided that ‘deceased person’ means a person in whom permanent disappearance of all evidence of life occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time after live birth has taken place.As he continued to explain brain-stem death, and its different meanings in different countries, Justice Kant-led bench said, “It is almost impossible for us to understand the medical terminologies you use. Why don’t you make a presentation on this before the National Medical Commission or experts from the health ministry?”“Ultimately, even if the court or the authorities accept your definition of bran-death, ultimately it would require the government to move a Bill in Parliament to amend the law. Can SC direct Parliament to amend a law? Will it not violate the Constitution-mandated separation of power,” the bench asked.Dr Ganapathy said organ transplant is the biggest business in India and only the poor patients are declared brain-dead to enable harvesting of the organs for other rich patients. “Why is it that hospitals declare only poor patients as brain-dead and not the kin of a SC judge, advocate or a rich and influential person,” he asked.The bench said, “If Parliament chose a definition of brain-death, the courts must accept it. We will not be able to change it even as the Supreme Court. You may argue that the brain-death definition given in the law is incomplete, but it is not an incorrect one.” When the court was about to dispose of the appeal, Dr Ganapathy said his earlier petition, challenging another order of the Kerala HC asking him to approach appropriate authority regarding malpractice in hospitals in declaring a person brain-dead, is pending since 2018 and requested that the present appeal be tagged with that one. SC gladly agreed to escape the medical jargon.