( 1 ) PETITIONER, Balbir Singh, 57 years old, suffering from Hepatitis-C related cirrhosis of liver end stage disease with portal hypertension, filed this writ petition. He assailed the rejection of request for donation of liver by his brother Baljit Singh for transplantation. Petitioner required transplantation of liver. His brother Baljit Singh offered to donate part of his liver for transplantation. The Authorization Committee- respondent No. 1 of the Indraprastha Apollo hospital-respondent No. 2 declined to permit transplantation, it did so since HLA typing Test conducted on the donee Baljit Singh failed to establish his near relationship with the petitioner. The Authorization Committee intimated the petitioner that if he still wanted to proceed with the transplantation, a detailed study of other family members hla typing was required.

( 2 ) THE petition came up before this Court on 21st January, 2004 when notice was issued to the respondents to show cause as to why rule nisi be not issued, returnable on 23rd January, 2004, with direction to the respondents to produce the record of the case through an expert Doctor to assist the court. On 23rd January, 2004, respondents 1 and 2 represented by Mr. A. S. Chandhiok, sr. Advocate with Ms. Nina Gupta and Dr. Raja Shekhar, Senior Consultant in Transplant Surgery presented the record. Mr. Chandhiok submitted on behalf of respondents 1 and 2 that objections as to the maintainability of the writ petition were not being raised as this was not an adversarial litigation. He submitted that the Hospital was only complying with the duty cast upon the medical practitioners under Rule 4 (c) of the Transplantation of Human Organs rules, 1995 (hereinafter referred to as the rules ). The Hospital had carried out HLA a, HLA-B and HLA-DR tests to establish that the donee was a "near relative" of the petitioner. As these tests did not match, they asked the petitioner to get the other tests done as specified in sub-clauses (ii) to (iv) of clause (c) of Rule 4 of the Rules, from other family members, who may be available as donors.

( 3 ) ON the factual matrix, petitioner was admitted in the Hospital on 22-11-2003. Tests were carried out on 11-12-2003 and the report became available on 13-12-2003. Thereafter, the petitioner was discharged. The Hospital had advised liver transplant on an urgent basis. Petitioner got readmitted on 8-1-2004. On 14-1-2004, the hospital requested All India Institute of Medical sciences to have Molecular Typing (RELP/ dna Polymorphisms) tests to be carried out to establish genetic relationship between the donor and the recipient. Petitioner s parents were also dead.

( 4 ) IT is common ground between the parties that petitioner s condition required liver transplantation urgently as his health was deteriorating. On 23-1-2004. Dr. Rajashekhar, Consultant in Transplant surgery, Appollo Hospital gave his assessment on need and feasibility of Liver transplantation in the petitioner s case. Dr. Raja shekhar candidly submitted that Surgery should ideally be done within a week and that AIIMS had been requested to carry out further tests as noted earlier, which were not available at the Apollo Hospital.

( 5 ) THE Bench on hearing Dr. Raja shekhar as well as perusing the available medical literature, found prima facie that in case of liver transplantation, unlike kidney transplantation, tissue matching was not of much consequence. The relevant factors in liver transplantation were the matching of the size and condition of part of organ being removed and the matching of the blood group. In other words, the size and healthy state of organ were required to be considered. These were critical and determinative factors and the requirement to ensure the donor being the "near relative" was not required from medical or scientific point of view for acceptability of the organ in transplantation. Besides, petitioner had produced credible evidence to establish that donee was brother of petit

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