Plea Alleging Premature ‘Brain Death’ Declarations For Organ Harvesting: SC Says It Can’t Override Parliament

The matter was taken up by a Bench of Justice Surya Kant and Justice Joymalya Bagchi.

The petitioner, neurosurgeon Dr. S. Ganapathy, appeared in-person and argued that the very concept of “brain death” is a misnomer, routinely misused to declare patients dead when they are not, in order to facilitate organ transplantation.

At the outset, the Bench noted that the question essentially pertained to medical science and public health policy. “You have experience and understand the subject well. Why don’t you make a representation to the NMC (National Medical Commission) or another expert body? We can request them to examine it,” the Bench suggested to the petitioner, cautioning that while the grievance may be genuine, the Court’s powers in the matter were limited.

Justice Surya Kant remarked, “We may agree with you, but our powers are limited. We cannot direct Parliament. Ultimately, this may require legislative intervention.”

Dr. Ganapathy, however, pressed that the judiciary could not abdicate its responsibility to examine whether the current legal position is constitutional. He cited remarks recently made by the Chief Justice of India at an event in Amravati, where the CJI reportedly said that “it is the Constitution, not Parliament, that is supreme,” and that courts must intervene to uphold constitutional guarantees.

“This case on brain death highlights that the term itself is a misnomer, used only to harvest organs from those who are not truly dead,” he submitted. He recounted instances where patients with treatable brain clots were kept untreated, only to be declared brain dead after a few days, with families then being pressured to either take the body or agree to organ donation. “This has happened to 1,500 youngsters,” he alleged.

Ganapathy further claimed that only poor patients are routinely declared brain dead. “No doctor is going to support this,” he said, underscoring that the certification process is stacked against the underprivileged.

Justice Bagchi countered that the legislature had made a conscious choice in the Transplantation of Human Organs Act to recognise irreversible cessation of brain-stem activity as a form of death for the limited purpose of organ transplantation. “To ensure effective organ transplantation, Parliament has defined irreversible cessation of brain activity as the end of human life. This cannot be said to violate Article 21. Courts cannot second-guess Parliament or replace its judgment,” Justice Bagchi said.

He explained that the law carves out an exception, whereby stoppage of brain stem functions is accepted as the starting point of brain death. “The concept of death has multiple medico-legal starting points; cardio-vascular death, cellular death, and so on. If Parliament designates brain death as the point when organ transplantation is allowed, courts cannot substitute it, even if your argument is persuasive. You should pursue this with the Ministry,” Justice Bagchi advised.

Justice Kant described the controversy as being more ethical than legal. “Brain stem death means all functions have irreversibly ceased. We request you to approach AIIMS; if an institution like that makes a recommendation to the government, it carries weight,” he said.

When the petitioner insisted that declaring brain death amounted to “definite killing,” Justice Kant responded that wrong certification may occur in individual cases and could amount to medical negligence, but that did not make the statutory definition itself unconstitutional. “The degree of wrongdoing depends on the facts of each case. You are raising it hypothetically here, not in a specific instance,” he said.

Justice Bagchi also pointed out that the statutory framework already has safeguards. “Concerns about collusion between doctors and recipients are addressed by requiring certification from an independent medical professional. Even among doctors, there is no unanimity. Wrong certification may occur, but that is to be addressed case by case,” he noted.

Towards the end of the hearing, Dr. Ganapathy requested that his plea be tagged with another case already pending before the Court concerning the legal and medical contours of brain death.

The Bench agreed to hear the matter after the decision in the connected case.

For now, the Court has refrained from issuing any directions, reiterating that while the issue raises significant ethical and social concerns, the judiciary cannot substitute Parliament’s judgment on what constitutes death for the purpose of organ transplantation.