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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

&

THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946

WP(C) NO. 2449 OF 2021

PETITIONER/S:

DR.S.GANAPATHY,

AGED 73 YEARS

S/O. LATE ADVOCATE K. SADANANDAN, ANJALI,

MARUTHADI P.O. KOLLAM 691003.

BY ADV DR.S.GANAPATHY,(Party -In-Person)

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RESPONDENT/S:

1 UNION OF INDIA

REPRESENTED BY THE SECRETARY, MINISTRY OF

HEALTH AND FAMILY WELFARE, NEAR YDYOG BHAVAN

METRO STATION, MAULANA AZAD ROAD, NEW DELHI

DELHI 110011.

2 STATE OF KERALA,

REPRESENTED BY THE SECRETARY, DEPARTMENT OF

HEALTH AND FAMILY WELFARE, GOVERNMENT

SECRETARIAT, THIRUVANANTHAPURAM 695 001.

3 NATIONAL ORGAN AND TISSUE TRANSPLANT

ORGANISATION,

(NOTTO), 4TH FLOOR, NATIONAL INSTITUTE OF

PATHOLOGY NIOP BUILDING, SAFDURJUNG HOSPITAL

CAMPUS NEW DELHI 110029, REPRESENTED BY ITS

DIRECTOR.

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4 DR. EASWER H V

AGED 53 YEARS, S/O (LATE) HARIHARAN, PROFESSOR

OF NEURO SURGERY, SREE CHITRA TIRUNAL INSTITUTE

OF MEDICAL SCIENCES, TRIVANDRUM, RESIDING AT

SAI GANESH, PURA 144 , KESARI LANE,

MUDAVANMUGAL ROAD, POOJAPPURA, TRIVANDRUM.

ADDL. R4 IMPLEADED AS PER ORDER DATED

09/12/2024 IN I.A.No.1/2024 in WP(C).

BY ADVS.

SMT.MINI GOPINATH, CGC

SENIOR GOVERNMENT PLEADER

SHRI A.J.VARGHESE

A.AHZAR

NADEEDA FATHMA M.M.

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON

28.01.2025, THE COURT ON 10/02/2025 DELIVERED THE

FOLLOWING:

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J U D G M E N T “C.R.”

Dated this the 10th day of February, 2025

A.Muhamed Mustaque, J.

Dr.S.Ganapathy, a septuagenarian, has not lost his spirit and

energy in espousing a public cause. He approached this Court in

this Public Interest Litigation with the following prayers.

i. Declare that the concept of 'brain death' is wrong, unscientific and

certification so made is violative of Article 21 of the Constitution of India.

ii. Declare that Section 2(d) and (e) of the Transplantation of Organs

and Tissues Act 1994 (THOTA) is unconstitutional and arbitrary, being

violative of Article 21 of the Constitution of India.

iii. Set aside Sections 2(d) and (e) of the THOTA, 1994,

iv. Issue such other relief as this Hon'ble Court may deem fit and proper

in the facts and circumstances of the case.

v. And award Costs.

2. He had moved this Court on an earlier occasion in WPC

5552/2017 pointing out the malpractice of Hospital authorities in

declaring a patient as brain dead. This Court vide judgment dated

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28/6/2017 directed the petitioner to bring to the notice of the

competent authority in regard to the malpractices and directed the

State to take appropriate action thereon.

3. Later it appears that Dr.Ganapathy realised that the

brain death concept is factually and legally incorrect and there is

no uniform scientific assessment across the globe in declaring a

patient as brain dead. He, accordingly, came up with this writ

petition on the ground that the concept of brain death and

certification in India is unscientific and is violative of Article 21 of

the Constitution. In tune with the larger prayer, he also seeks to

declare Sections 2(d) and 2(e) of the Transplantation of Human

Organs and Tissues Act, 1994 (hereinafter referred to as ‘THOTA’)

relatable to brain death as unconstitutional.

4. Dr.Ganapathy points out, with various literature published

and response to queries raised by him from Professors in Medicine,

that there is no specific length of time to declare that a brain is

dead and further argues that some patients who have been

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declared as brain dead have come back to life. According to him,

there are instances in the world where a patient declared brain

dead gave delivery to a baby.

5. We had the advantage of hearing Dr. Easwar H.V., a

Professor of Neurosurgery at Sree Chitra Tirunal Institute of

Medical Sciences, Thiruvananthapuram, who got himself impleaded

in the matter to defend the concept of brain death in India. He

defended that brain death is medically and ethically correct.

According to Dr. Easwar, if a patient is not declared brain dead

after the brain's blood circulation and oxygen supply are cut off and

if such a patient is allowed to remain in the hospital forever, it

would displace the cause of a genuine patient to get treatment with

all apparatus and support system. He submits that a patient is

declared brain dead when all functions of the brain are stopped. It

is submitted that in such situations, the patient is unconscious and

he may require ventilatory support.

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6. We appreciate both doctors at the outset for their

illuminating submissions made before this Court, both against and

in support of brain death.

7. What is brain death? In the Indian context, it can be

inferred from Sections 2(d) and 2(e) of the THOTA. Brain -stem

death is defined under Section 2(d), and a deceased person is

defined under Section 2(e) of the Act. A reference to brain-stem

death is made as follows:

2(d) “brain-stem death” means the stage at which all functions of the

brain-stem have permanently and irreversibly ceased and is so certified

under sub-section (6) of section 3;

2(e) “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.

8. The Apex Court in Aruna Ramachandra Shan baug v.

Union of India and others [(2011) 4 SCC 454], in the context

of euthanasia, has illustrated how one is declared dead when his

brain is dead in paragraph 107, which reads as follows:

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“107. A person's most important organ is his/her brain. This organ

cannot be replaced. Other body parts can be replaced e.g. if a person's

hand or leg is amputated, he can get an artificial limb. Similarly, we can

transplant a kidney, a heart or a liver when the original one has failed.

However, we cannot transplant a brain. If someone else's brain is

transplanted into one's body, then in fact, it will be that other person

living in one's body. The entire mind, including one's personality,

cognition, memory, the capacity of receiving signals from the five senses

and capacity of giving commands to the other parts of the body, etc.

are the functions of the brain. Hence one is one's brain. It follows that

one is dead when one's brain is dead.”

9. It has been pointed out by Dr. Ganapathy that there is no

uniform assessment in regard to brain death across the globe.

According to him, in the US, brain death is certified when the whole

brain has come to irreversible cessation, and it is required to declare

a patient suffering from brain death by observing 24 hours. He

points out that whereas in the UK it is not necessary that the whole

brain has to come to an irreversible cessation, and it is sufficient

that observations are made for 6 hours. It is sufficient in the UK

that all functions of the brain stem irreversibly cease to function.

In India, brain death is certified when all the functions of the brain

stem have permanently and irreversibly ceased {see Section 2(d)

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of THOTA} and it is sufficient that observations are made for 6

hours {see Form 10, note II of THOTA}.

10. We also searched online, and ChatGPT provided us with

the prevalent policies followed in regard to brain death in some of

the countries. The chart generated by ChatGPT on a search made

by us on 5/2/2025 is produced herewith.

11. In an article titled, Human Organ Transplantation: The

Role of Law, by Fred H. Cate, the author narrates how the

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definition of death evolved over the years in US for regulating

organ transplantations as follows:

“A second area for early state regulation of transplantation involved the

definition of "death." In order for organs to be viable for transplantation,

both circulation and respiration must be maintained in the host body.

Death must therefore be determined by the absence of all brain activity.

Prior to 1970, no state statute permitted such a determination of death.

Doctors and hospitals risked liability if they removed artificial life support

systems from a body based on the absence of brain activity and lack of

response to stimuli. The UAGA contained no definition of "brain death"

because of the drafters’ concern that the controversy surrounding the

issue of brain death in the 1960s would delay states' passage of the Act.

Instead, the UAGA merely provided that death shall be determined by a

physician who will not participate in the removal or transplantation of

any of the decedent's body parts.

In 1980, however, the National Conference of Commissioners on

Uniform State Laws promulgated its Uniform Determination of Death Act

(UDDA), and both the ABA and the AMA approved it the following year.

Recommended by the President's Commission for the Study of Ethical

Problems in Medicine and Biomedical and Behavioral Research, the

UDDA provides: "An individual who has sustained either (1) irreversible

cessation of circulatory and respiratory functions, or (2) irreversible

cessation of all functions of the entire brain, including the brain stem, is

dead. A determination of death must be made in accordance with

accepted medical standards."

1

1

Fred H. Cate, Human Organ Transplantation: The Role of Law, 20 J. CORP. L. 69 (Fall 1994).

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12. In America, brain stem death is not an acceptable

standard to declare a patient brain dead, this was discussed in an

article titled, “Brain Stem Death: A comprehensive review in

Indian Perspective”, by Dhanwate A.D., published in the Indian

Journal of Critical Care Medicine. The relevant portion of the article

is quoted below:

“The Brain-stem death concept is still not accepted by the USA, which

still believes in whole-brain-death formulation. This fact is again

underlined in the recently published White Paper on “Controversies in the

Determination of Death” by the President’s Council on Bioethics. The

Council considered the U.K position a “reduction”, “conceptually suspect”

and “clinically dangerous”. The council advocated the term “total brain

failure” in place of “whole-brain-death”. Some authors view this new

term as philosophically neutral and physiologically clearer, while others

find it unhelpful. The council rejects the 1968 Harvard committee’s social

construct approach and also the higher brain approach. The council

proposed a new-unifying concept of death. Death remains the cessation

of the organism as a whole and wholeness depends on the existence of

the fundamental vital work of the organism – the work of self-

preservation, achieved through the organism’s need -driven commerce

with the surrounding world. The council emph asizes breathing and

consciousness as important forms of environmental commerce. Thus, on

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this account, total brain failure can continue to serve as a criterion for

declaring death.”

2

13. In the Article “Brain Death and Organ

Transplantation: Ethical Issues” by Calixto Machado, the

author opined that the diagnosis of human death depends on the

irreversibility and potentiality of being dead or alive. He explains

as follows:

“The issue of irreversibility is directly related to the diagnosis of human

death, and it is closely associated with the concept of potentiality, that

is, that some patients still have the potential to live.

Hence, if a patient lacks the potential to retain certain functions, then it

is possible to affirm that his or her condition is “irreversible” regarding

those functions.”

3

Further, the author says that it is surely possible to keep “alive” for

decades a brain dead patient, or possibly even a decapitated

patient without a functioning heart, with ventilatory assistance and

an extracorporeal machine but the author poses a very relevant

question in this regard i.e, are we preserving a corpse or a human

being?

4

2

Dhanwate AD., Brainstem death: A comprehensive review in Indian perspective. Indian J Crit Care Med

2014;18(9):596-605.

3

Calixto Machado, Brain Death and Organ Transplantation: Ethical Issues, available at

https://www.researchgate.net/publication/290820428

4

id

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14. Dr. Ganapathy's argument highlights an ongoing ethical

and medical debate surrounding brain death, particularly regarding

the timing and certainty of such a diagnosis. While brain death is

considered an irreversible loss of all brain function, including the

brainstem, some cases have sparked discussion due to reports of

delayed recovery or prolonged bodily functions, such as

maintaining pregnancy.

15. Several documented instances exist where brain dead

pregnant women have been kept on life support to sustain the fetus

until viability. However, these cases do not necessarily challenge

the concept of brain death but rather demonstrate how medical

intervention can sustain bodily functions temporarily.

16. The assertion that patients declared brain dead have

"come back to life" is highly controversial. True brain death, as

diagnosed through rigorous medical protocols, is considered final.

Cases of misdiagnosis or recovery from deep comas (which are

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different from brain death) may sometimes be mistaken for

reversals of brain death.

17. Our online research reveals shocking news from different

parts of the world in regard to patients who have come back to life

after declaring brain dead. In an online news journal, The New

York Post, a news report dated 29.10.2024 highlights that Thomas

PJ Hoover who was declared brain dead after suffering a drug

overdose in October 2021 woke up from the operating table.

5

Similarly, in another news journal, The Scottish Sun, news was

reported on 23/10/2024, about a brain dead patient waking up

before his surgery for organ donation.

6

Another news was reported

in a news journal, People, on 07/11/2024, that a patient namely,

Jake Haendel who was declared brain dead by doctors was found

5

Available at: Kentucky organ donor who woke up on operating table had heartbreaking past involving

death, drugs,last visited on 10/02/2025.

6

Available at: Haunting moment ‘brain dead’ patient is wheeled into theatre to donate his organs…before

WAKING UP during deadly surgery – The US Sun | The US Sun, last visited on 10/02/2025.

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to be suffering from locked-in syndrome and recovered after 10

months.

7

18. Parliament enacted the THOTA in the year 1994 to

provide regulation of removal, storage and transplantation of

human organs. It is in that context of the enactment, Parliament

defined brain stem death. That means, Parliament assumed brain

stem death as factually and legally tenable. Parliament also

prescribed a procedure to be followed to declare a person as brain

dead for removal of organs if the brain stem has permanently and

irreversibly ceased to function under sub-section 6 of Section 3 of

THOTA. Section 3(6) of THOTA prescribes the following procedure:

“3(6) Where any [human organ or tissue or both] is to be removed from

the body of a person in the event of his brain-stem death, no such

removal shall be undertaken unless such death is certified, in such form

and in such manner and on satisfaction of such conditions and

requirements as may be prescribed, by a Board of medical experts

consisting of the following namely: -

(1) the registered medical practitioner in charge of the hospital in which

brain-stem death has occurred;

7

Available at : https://people.com/man-declared-brain-dead-talks-locked-in-syndrome-recovery-exclusive-

8740104?utm_source=chatgpt.com, last visited on 10.02.2025.

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(ii) an independent registered medical practitioner, being a specialist to

be nominated by the registered medical practitioner specified in clause

(1), from the panel of names approved by the Appropriate Authority;

(iii) a neurologist or a neurosurgeon to be nominated by the registered

medical practitioner specified in clause (i), from the panel of names

approved by the Appropriate Authority:

Provided that where a neurologist or a neurosurgeon is not available,

the ex-registered medical practitioner may nominate an independent

registered medical practitioner, being a surgeon or a physician and an

anaesthetist or ha intensivist subject to the condition that they are not

members of the transplantation team for the concerned recipient and to

such conditions as may be prescribed;

(iv) the registered medical practitioner treating the person whose brain-

stem death has occurred.”

That means, Parliament recognizes brain death and also recognizes

procedures for transplantation of human organs from the patients

declared as brain dead.

19. The Court cannot now enter upon a controversy to define

what is brain death or not. Parliament is the only authority to define

what is brain death. Brain death in India is recognized through a

definite medical procedure. The Court cannot judicially review

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Parliament’s wisdom in assuming certain facts as correct for the

application of law.

20. The Apex Court in Jacob Puliyel v. Union of India and

Others [2022 SCC OnLine SC 533] has elucidated the above

aspect as follows:

“22. This Court in a series of decisions has reiterated that courts should

not rush in where even scientists and medical experts are careful to

tread. The rule of prudence is that courts will be reluctant to interfere

with policy decisions taken by the Government, in matters of public

health, after collecting and analysing inputs from surveys and research.

Nor will courts attempt to substitute their own views as to what is wise,

safe, prudent or proper, in relation to technical issues relating to public

health in preference to those formulated by persons said to possess

technical expertise and rich experience. Where expertise of a complex

nature is expected of the State in framing rules, the exercise of that

power not demonstrated as arbitrary must be presum ed to be valid as

a reasonable restriction on the fundamental right of the citizen and

judicial review must halt at the frontiers. The Court cannot re-weigh and

substitute its notion of expedient solution. Within the wide judge-proof

areas of policy and judgment open to the government, if they make

mistakes, correction is not in court but elsewhere. That is the comity of

constitutional jurisdictions in our jurisprudence. We cannot evolve a

judicial policy on medical issues. All judicial thought, Indian and Anglo-

American, on the judicial review power where rules under challenge

relate to a specialised field and involve sensitive facets of public welfare,

has warned courts of easy assumption of unreasonableness of

subordinate legislation on the strength of half-baked studies of judicial

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generalists aided by the adhoc learning of counsel. However, the Court

certainly is the constitutional invigilator and must act to defend the

citizen in the assertion of his fundamental rights against executive

tyranny draped in disciplinary power.”

21. Further, In Re: Section 6A of the Citizenship Act

1955, [2024 SCC OnLine SC 2880] , the Apex court has

elucidated the limits of judicial review as follows:

“48. Similarly, it is imperative to emphasize that courts also lack the

authority to intervene in policy matters when based on the premise of

policy errors or the availability of ostensibly superior, fairer, or wiser

alternatives. The Court cannot do a comparative analysis of policy to

determine which would have been better. As summarized by this Court

in Directorate of Film Festivals v. Gaurav Ashwin Jain:

“16. […] The scope of judicial review when examining a policy of the

Government is to check whether it violates the fundamental rights of

the citizens or is opposed to the provisions of the Constitution, or

opposed to any statutory provision or manifestly arbitrary. Courts

cannot interfere with policy either on the ground that it is erroneous or

on the ground that a better, fairer or wiser alternative is available.

Legality of the policy, and not the wisdom or soundness of the policy, is

the subject of judicial review”.

[Emphasis supplied]

49. This is particularly true for complex areas requiring empirical

knowledge, data inputs, and technical expertise, such as matters

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involving economic policy, scientific policy, or international relations.

Complex social, economic, or commercial issues require a trial-and-error

approach, the weighing of different competing aspects, and often

intricate factual studies. Such matters rais e complicated multi-

disciplinary questions that do not fall within the legal domain, are

irreducible to one answer, and require adjustment of priorities amongst

different stakeholders.

50. Since courts are not equipped to evaluate such factual aspects, they

cannot be allowed to formulate policy. In contrast, the legislature has

the correct institutional mechanism to deliberate on various

considerations, as it facilitates decision-making by democratically

elected representatives who possess diverse tools and skill sets to

balance social, economic, and political factors. Such policy matters thus

ought to be entrusted to the legislature. This principle is succinctly

encapsulated by Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., in

which a 5-judge bench of this Court held that:

“Scales of justice are just not designed to weigh competing social and

economic factors. In such matters legislative wisdom must prevail and

judicial review must abstain.”

51. Furthermore, the Courts are not tasked with assessing the efficacy

of policies. A policy may successfully achieve the objectives outlined in

legislation, or it may possess limitations hindering the full realization of

its aims. Regardless, the Court cannot sit in judgment over policy to

determine whether revisions may be necessary for its enhancement...

52. In summary, the judicial review of government policies encapsulates

determining whether they infringe upon the fundamental rights of

citizens, contravene constitutional provisions, violate statutory

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regulations, or display manifest arbitrariness, capriciousness, or mala

fides. The focus of judicial scrutiny is limited to the legality of the policy,

excluding any evaluation of its wisdom or soundness. The Court cannot

compel the government to formulate a policy, evaluate alternatives or

assess the effectiveness of existing policies. This constraint stems from

the principle of separation of powers, where the Court lacks the

democratic mandate and institutional expertise to delve into such

matters. Thus, while the Court can invalidate a policy, it lacks the

authority to create one.”

22. Therefore, the Court's hands are tied. Parliament, in its

wisdom, recognizes brain death through a definite medical

procedure. It signifies that brain death is recognised in India, and

the concept of brain death cannot be reviewed by the Court. The

writ petition must fail. It is accordingly dismissed.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

P. KRISHNA KUMAR, JUDGE

ms

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APPENDIX OF WP(C) 2449/2021

RESPONDENT EXHIBITS

Exhibit R3(a) A TRUE COPY OF THE LINE DIAGRAM

Exhibit R3(b) TRUE COPY OF THE REFERENCE ARTICLE OF

NEUROANATOMY : BRAIN STEM

Exhibit R3(d) TRUE COPY OF ARTICLE DETERMINATION OF BRAIN

DEATH/DEATH BY NEUROLOGIC CRITERIA THE WORLD

BRAIN DEATH PROJECT'

Exhibit R3(e) A TRUE COPY OF FORM NO. 10

Exhibit R3(c) TRUE COPY OF ARTICLE 'BRAINSTEM DEATH: A

COMPREHENSIVE REVIEW IN INDIAN PERSPECTIVE BY

ANANT DATTATRAY DHANWATE IN THE INDIAN JOURNAL

OF CRITICAL CARE MEDICINE SEPTEMBER 2014 VOL 18

ISSUE 9' WITH ABC OF BRAIN STEM DEATH SECOND

EDITION 1996

PETITIONER EXHIBITS

EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE INFORMATION

DOWNLOADED FROM THE WEBSITE.

EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE INFORMATION

DOWNLOADED FROM THE WEBSITE.

EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE INFORMATION

DOWNLOADED FROM THE WEBSITE.

EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE NEWS ITEM PUBLISHED

IN THE WASHINGTON POST ON 23.12.2015 WHICH WAS

OBTAINED FROM THE WEBSITE.

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EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE OPINION GIVEN BY THE

AMERICAN ACADEMY OF NEUROLOGY, WHICH HAS BEEN

DOWNLOADED FROM THE WEBSITE.

EXHIBIT P1 TRUE PHOTO COPY OF THE ANATOMY OF THE BRAIN.

EXHIBIT P12 TRUE PHOTOSTAT COPY OF THE EMAIL RECEIVED BY

THE PETITIONER FROM PROF. ALAN SHEWMON DATED

27.10.2017.

EXHIBIT P13 TRUE PHOTOSTAT COPY OF THE CODIFIED OPINION

GIVEN BY EXPERTS IN THE FILED BY NEUROLOGY.

EXHIBIT P14 TRUE PHOTOSTAT COPY OF THE RELEVANT PORTIONS OF

CODE OF PRACTICE FOR DIAGNOSIS AND CONFIRMATION

OF BRIAN DEATH ISSUED BY THE ACADEMY OF MEDICAL

ROYAL COLLEGES.

EXHIBIT P15 TRUE PHOTOSTAT COPY OF THE INFORMATION

DOWNLOADED FROM THE WEBSITE.

EXHIBIT P11 TRUE PHOTOSTAT COPY OF THE INFORMATION

DOWNLOADED FROM THE WEBSITE.

EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE INFORMATION

DOWNLOADED FROM THE WEBSITE.

EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE INFORMATION

DOWNLOADED FROM THE WEBSITE.

EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE INFORMATION

DOWNLOADED FROM THE WEBSITE.

EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE INFORMATION

DOWNLOADED FROM THE WEBSITE.