Supreme Court Calls for National Policy to Address Inconsistencies in Organ Transplantation
The Supreme Court of India has recently expressed serious concern over inconsistencies in organ transplantation rules and practices across different States and has called upon the Union Government to frame a comprehensive national policy with uniform criteria. The Court’s focus is two-fold: ensuring fairness and transparency in allocation of organs, and preventing the exploitation of vulnerable donors.
This judgment is a significant development in Indian medical and constitutional jurisprudence. It attempts to bridge the gap between the legislative framework of the Transplantation of Human Organs and Tissues Act, 1994 (THOA) and the uneven ground realities of implementation by various States and Union Territories.
Legal and Regulatory Background
The Transplantation of Human Organs and Tissues Act, 1994 was enacted with two primary objectives:
- To regulate the removal, storage and transplantation of human organs and tissues for therapeutic purposes; and
- To prohibit and prevent commercial dealings in human organs.
Subsequent amendments and rules expanded the scope of the law, clarified definitions and laid down detailed procedures regarding:
- Registration of hospitals authorised to perform transplants;
- Constitution and functioning of Authorisation Committees for living donors;
- Consent requirements for deceased and living donations;
- Maintenance of registries and reporting obligations.
However, despite a central statute, implementation has been fragmented. Different States have adopted their own rules, issued varied guidelines, and developed divergent practices in approval, allocation, waiting lists and donor safeguards. This patchwork is what prompted the Supreme Court to intervene and call for a national policy.
Key Directions of the Supreme Court
In the recent judgment, the Supreme Court flagged several core issues and indicated that a national policy must address at least the following areas:
- Uniform allocation criteria: Establishing transparent, objective and medically sound criteria for allocation of organs so that similarly situated patients receive similar treatment, irrespective of the State in which they are located.
- Standardised donor eligibility norms: Harmonising the parameters for living and deceased donor eligibility to prevent arbitrary refusals and to safeguard donor health and autonomy.
- Prevention of exploitation and commercialisation: Strengthening mechanisms to detect and prevent organ trafficking, coercion, and financial inducement in living donation.
- Protection of poor and marginalised patients: Ensuring that economically weaker sections, women, and socially disadvantaged groups are not pushed to the back of the queue and have fair access to life-saving transplants.
- Institutional infrastructure: Encouraging all States and Union Territories to establish State Organ and Tissue Transplant Organisations (SOTOs), maintain registries, and develop coordinated systems for allocation across hospitals and regions.
Supporting Case Law
1. Kuldeep Singh & Another v. State of Tamil Nadu & Others (2005)
In this case, the Supreme Court examined issues relating to inter-State organ transplantation, particularly jurisdiction of the Authorisation Committee where the donor and recipient belonged to different States. The Court emphasised:
- The importance of following the statutory safeguards under THOA;
- The need for clarity in procedures so that transplants are not delayed unnecessarily;
- That bureaucratic confusion between States should not come in the way of a patient’s right to timely treatment.
This judgment highlighted the challenges of fragmented regulation and foreshadowed the need for uniformity which the present Supreme Court judgment now stresses at a policy level.
2. Amar Singh Bhatia & Anr. v. Sir Ganga Ram Hospital & Ors. (Delhi High Court)
The Delhi High Court, in this notable case, dealt with delay in processing applications for organ transplantation. The Court observed that:
- Applications before the Authorisation Committee must be processed within a fixed and reasonable time;
- Unwarranted delay could violate the patient’s right to life under Article 21 of the Constitution;
- Administrative lethargy in life-saving matters is unacceptable.
Though a High Court decision, it strongly influenced the discourse that the present Supreme Court judgment builds upon: the legal system must minimise procedural obstacles in organ transplantation while maintaining robust safeguards against abuse.
3. Broader Constitutional Jurisprudence
Even though not limited to transplantation, Supreme Court decisions on the right to health and medical treatment, such as Paschim Banga Khet Mazdoor Samity v. State of West Bengal, have recognised that:
- The right to life under Article 21 includes the right to timely and adequate medical treatment;
- The State has a positive obligation to create and maintain health infrastructure; and
- Denial of critical care due to administrative failures can amount to a constitutional violation.
The present judgment on organ transplantation can therefore be seen as an extension of this Article 21 jurisprudence into a highly specialised and sensitive area of medical law.
Positive Arguments in Favour of the Judgment
1. Promotion of National Uniformity and Fairness
A central strength of the judgment is its insistence on national uniformity. Patients with similar medical conditions should not face radically different outcomes merely because they live in different States. A common framework for waiting lists, priority criteria, and allocation protocols is essential to uphold Article 14 (equality before law).
2. Stronger Donor Protection
Organ donation, especially from living donors, involves real physical and psychological risks. By focusing on uniform donor eligibility and better safeguards, the Court supports:
- Comprehensive counselling of donors and their families;
- Independent scrutiny of the voluntariness of consent;
- Proper post-operative care and long-term follow-up for donors.
This is consistent with the spirit of THOA, which aims to protect donors from exploitation and coercion, and to eliminate commercial dealings in organs.
3. Prevention of Exploitation and Organ Trade
India has historically faced scandals involving organ trafficking and “kidney rackets”. Fragmented rules and lax enforcement in some jurisdictions make it easier for unscrupulous middlemen to exploit poor and vulnerable persons. A national policy with uniform standards can:
- Close loopholes that traffickers exploit by moving donors and recipients across States;
- Ensure stronger common verification processes for unrelated donors;
- Improve coordination between law-enforcement and medical regulators.
4. Better Access for Poor and Marginalised Patients
The Court has rightly highlighted that access to organ transplantation should not be dictated solely by wealth or social status. A rational and transparent allocation system:
- Reduces scope for back-door influence in getting priority on waiting lists;
- Allows public hospitals to compete more fairly with private facilities;
- Can be designed to ensure that economically weaker patients receive proportionate opportunities for transplant, especially in government schemes.
5. Judicial Impetus to Administrative Reform
In many areas of health law, reforms have occurred only after judicial intervention: for example in blood banking, medical negligence standards, and victims’ rights. By calling for a national policy, the Supreme Court has:
- Put time-bound pressure on the executive to act;
- Signalled that mere existence of legislation is not enough without effective implementation;
- Provided a constitutional lens through which transplantation policy must be framed.
Negative or Critical Arguments
1. Concerns of Judicial Overreach and Federalism
A principal criticism is that the judiciary may be stepping too far into the domain of policy-making. Health is primarily a State subject under the Constitution, and States argue that they need flexibility to design their own systems according to local conditions. Critics may say:
- The Court is dictating the contours of policy instead of merely interpreting the law;
- Centralised uniform standards may undermine decentralised decision-making;
- Policymaking, particularly in complex medical fields, should remain with elected governments and expert bodies.
2. Risk of a “One-Size-Fits-All” Approach
Medical infrastructure, availability of specialists, and public awareness levels vary enormously across India. A rigidly uniform national policy could:
- Impose unrealistic obligations on resource-poor States;
- Fail to account for local cultural, social and economic factors that influence donation rates;
- Discourage innovation and region-specific models that are working well in some States.
Ideally, the policy should prescribe minimum standards while still allowing room for local adaptation. If it is drafted too prescriptively, it may face resistance from States and practical difficulties in implementation.
3. Implementation Gap and Resource Constraints
Directing a national policy on paper is not the same as changing what happens inside hospitals. Critics point out that:
- Many States lack adequate transplant centres, trained coordinators and intensive care facilities;
- There are gaps in public awareness and deceased-donor programmes;
- Without significant financial and administrative support, a uniform policy may remain largely aspirational.
In other words, the Court has raised expectations, but it is the executive that must now allocate funds, build capacity and ensure compliance across hundreds of hospitals nationwide.
4. Tension with Private Sector Participation
Private hospitals perform a substantial proportion of organ transplants in India. Stricter uniform regulatory standards, while necessary, could:
- Increase compliance costs for private hospitals;
- Potentially reduce incentives for them to invest in transplant programmes if procedures become too cumbersome;
- Lead to a situation where hospitals focus only on the most remunerative procedures, leaving poorer patients and complex cases behind.
A balanced policy must therefore protect donors and recipients without stifling legitimate private sector participation.
5. Limited Judicial Capacity to Monitor Compliance
Another criticism is pragmatic: the Supreme Court can pass directions, but it cannot, by itself, continuously monitor every transplant centre or State authority. Unless:
- Clear institutional monitoring mechanisms are created;
- Data is collected and regularly audited; and
- There are meaningful penalties for non-compliance,
the risk is that the judgment may gradually lose its bite and become another citation in organ transplantation litigation without achieving systemic change.
Balancing the Competing Considerations
The Supreme Court’s decision can be seen as an attempt to balance two competing imperatives:
- The need to respect federalism and policy-making autonomy of States; and
- The duty to protect fundamental rights under Articles 14 and 21, which are implicated when life-saving medical treatment is at stake.
The Court does not itself draft the entire policy; instead it outlines the broad contours and leaves detailed design to the executive and expert bodies. This structure allows some degree of flexibility while still giving a clear constitutional direction.
Way Forward
For the judgment to succeed in practice, concerted action is required on multiple fronts:
- Union Government: Draft a consultative national policy that sets minimum uniform standards, introduces transparent digital registries, provides for regular audits, and expressly protects vulnerable donors and recipients.
- State Governments: Harmonise local rules with the national framework, strengthen SOTOs, train transplant coordinators, and run awareness campaigns on deceased organ donation.
- Medical Institutions: Improve counselling, documentation, and waiting-list transparency; ensure compliance with both legal and ethical standards; and invest in donor and recipient long-term follow-up.
- Civil Society and NGOs: Engage in awareness building, monitoring of ground-level practices, and providing support to donors and recipients from marginalised communities.
Conclusion
The Supreme Court’s call for a national policy on organ transplantation is a crucial step in aligning India’s legal framework with the ethical demands of modern medicine and the constitutional promise of equality and dignity. By insisting on uniform criteria, donor protection and fair access, the Court has highlighted that organ transplantation is not merely a medical procedure but a matter of fundamental rights and public justice.
Yet, the judgment is not the final solution; it is an important starting point. The true measure of its success will lie in how swiftly and sincerely the Union and State authorities translate these directions into practice—so that every potential donor is protected, and every eligible recipient has a fair chance at a new life, regardless of where they live or how much they earn.
