Supreme Court Raises Eyebrows Over Doctor's Plea Questioning 'Brain Death' Concept

The Supreme Court today expressed reservations about entertaining a petition which disputed the practice of declararing a patient as "brain dead" - a point at which law allows for transplantation of organs.

The petitioner, Kerala-based doctor, Dr S Ganapathy, advanced a theory that 'brain death' was a fictitious concept which has been devised by doctors to facilitate organ trade.

A bench of Justices Surya Kant and Joymalya Bagchi, after hearing the petitioner for some time, adjourned the matter to decide it after another pending case filed by the same petitioner has been disposed of. 

During the hearing, the bench wondered if it can interfere with the legislative definition which was based on the views of domain experts.

"This is a medical issue. You have long experience and you understand the subject well. Why don't you make representation to National Medical Commission or any other body, whom we can request to examine? Ultimately, it would require legislative intervention. We may agree with you, but we have our limitations (can't direct Parliament)..." Justice Kant said.

In similar spirit, Justice Bagchi conveyed that the Court cannot second-guess the legislature which has defined the point at which there is irreversible cessation of brain activity as the point of cessation of human life.

"In order to ensure an effective transplantation and availability of organs, if a definition which is in consonance with the irreversible cessation of brain activity is treated as the point of cessation of human life...it can't be said to be in violation of Article 21...we can't second-guess legislature, we can only enforce constitutional rights...how can Courts replace it with something else than what the legislature considers appropriate? We acknowledged passive euthanasia..."

The judge further added that in genuine cases, transplantation of organs of brain-dead persons perpetuates life. "Idea of death in a medico-legal sense has various starting points. There's cardio-vascular death, cellular death...definition of death is a starting point...if Parliament chooses a point for brain death as a point where transplantation may be permitted, we may not be able to substitute it even if we feel you have a persuasive argument. Better you pursue the Ministry...idea of death has a spectrum...here Parliament defines it as brain death. It can't be said to be alien to medical or legal principles".

Recapitulating a speech given by CJI BR Gavai last week, the petitioner, appearing in person, however questioned where one can go if the Parliament violates the Constitution.

"Last week, CJI was addressing bar association in Amravati and said that people seem to think that in a democracy, Parliament is supreme. But it is not. Constitution is supreme. If Parliament violates basic principles of Constitution, judiciary must intervene."

He asserted that "brain death" is a misnomer, a term coined to secure organs of those who are not really dead. Further, he alleged that there is connivance between hospitals and those in need of organs, due to which people who are not really dead are declared "brain dead", so that their organs can be transplanted. It was also claimed that it's the poor strata that face the brunt of this malpractice, which is incentivized to donate organs of family members, by waiving off hospital bills.

The bench however pointed out that the concerns about connivance are allayed by the provision which requires certification of a brain death case by an independent medical professional. Noting that the case raised more of an ethical issue, Justice Kant suggested the petitioner to go to AIIMS and meet one Dr Srinivasan, to see if the institution can recommend something to the government. "we request you to go to AIIMS, Dr Srinivasan (Director of AIIMS) is there...if an institution can think of recommending to government that amendment is required...", said Justice Kant. The petitioner however expressed that his prayers would not be supported by any doctor.

Notably, Section 2(d) of the Transplantation of Human Organs and Tissues Act, 1994 defines “brain-stem death” as 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". Section 3(6) provides thus,

"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...".

This Board must include an independent registered medical practitioner, a specialist, who is to be nominated by the registered medical practitioner in charge of the hospital in which brain-stem death has occurred, from a panel of approved names. 

Case Title: DR. S. GANAPATHY Versus UNION OF INDIA AND ORS., SLP(C) No. 15696/2025