Authored By: Vaishnavi L
Date of judgement: 24 September, 2021
Bench: Justice P V Kunhikrishnan
Court: High Court of Kerala at Ernakulam
Citation: WP (C) No. 18776 of 2021
Overview of case:
The Kerala High Court opined that ‘swap transplants’[1] will be permissible even if each donor-recipient pair are not immediate relatives, provided there subsists a special reason for the donor to donate an organ like affection, fondness and attachment. The court mean is to allow the Transplantation of Human Organs and Tissues Act of 1994 turn into a path breaker for communal harmony and secularism so that people of different faiths and criminal backgrounds can donate their organs to the needy notwithstanding of caste, creed, religion or criminal antecedents.
Counsel for the petitioners, pointed out that the authorization committee repudiate both sets of applications holding that the petitioners do not come under the purview of ‘near relative’.
Background of case:
Moideenkutty, Malappuram, Jameela Saleem, Kannur, and Ummer Farooque KP filed the writ petition under Article 226 and Article 227 challenging the order of the Transplantation of Human Organs declining the plea for swap transplantation. Moideenkutty and Saleem are kidney patients. Jameela Saleem the wife of Saleem and Ummer Farooque the father-in-law of the son of Moideenkutty are ready to donate their kidneys.
Arguments:
· Contention by Petitioner
The counsel representing the petitioner, TP Sajid and Shifa Latheef pointed out that the authorization committee rejected both sets of applications holding that the petitioners do not come under the purview of ‘near relative’ as per the Transplantation of Human Organs and Tissues Act.
The argument of counsel is that they require urgent kidney transplantation and rejection of their application would cause offense to their fundamental right guaranteed under Article 21 of the Constitution of India.
· Contention by Respondent
Princy Xavier, the government pleader argued that despite the fact that Jameela Saleem, being the wife of Saleem, would be a near relative, Ummer Farooque cannot be treated as a near relatives as defined under the Transplantation of Human Organs and Tissues Act.
Explanation:
The judgement came on the plea of a man, whose both kidneys have flopped, challenging the committee’s 8th July evaluation disallowing the application for enabling his former driver organs, with whom he has a close association, to donate one of his kidneys to him. The District Level Authorization Committee submitted that a person willing to donate his kidney to destitute patient could not do so, as he was involved in multiple criminal incidents.
Deprecating the committee’s decision, the HC said the criminal antecedents of a donor was not a yardstick to be considered by the panel as per the provisions of the aforesaid act or the Transplantation of Human Organs and Tissues Rules of 2014 framed under it.
If the perception of the committee was accepted, the only potential deduction was that it believed that the criminal behavior of the donor would percolate to the persons who received the organs. No person who received with common sense could agree with these sturdy reasons given by the committee.
The court said that, “There is no organ in the human body like a criminal kidney or criminal liver or criminal heart! There is no difference between the organ of a person without a criminal antecedent and the organ of a person who has no criminal antecedents. Human blood is passing through all of us”.
Further it observed, “if a person dies, he will be buried and he will rot. If person is cremated, he will become ash, but if the organs of his body are donated, he will give life and happiness to many.” It added that, “I apprehend that, the respondent (committee) will reject such applications for permission to donate organs even on the ground that the donor is a murderer, thief, rapist, or involved in minor criminal offences. I hope, they will not reject the applications because the donor is a Hindu, Christian, Muslim, Sikh or person in a lower caste after comparing with the religion and caste of the recipient.”
The court opined if there was no trace to substantiate that shows there is no commercial dealing, “pragmatism should overtake technicalities, because a person is on bereavement. The decisions of the authorization committee should encourage the people to donate their organs to needy people. Awareness is necessary to increase the organ donation ratio in India. Some studies on the internet show that India remains a country with one of the lowest organ donation rates in the world.”
“In exigent cases, the concerned authority ought to convene the meeting and consider the applications forthwith, it further said that a time limit was necessary for convening the meeting also and if there was any delay of more than one week for convening a meeting from the date of receipt of the application by the committee, it should mention the reason for delay in the order.”
The court intended the committee to go back over the petitioner’s plea within seven working days.
Verdict:
The observation by Justice P V Kunhikrishnan came while setting aside the decision of the Ernakulam District Level Authorization Committee for Transplantation of Human Organ donation on the ground that the donor had criminal antecedents, “the court decided in the favor of the petitioners and directed the respondents to consider the application.”
The court observed that the Act envisages non-relative organ transplantation and the condition is that the donor should have a special reason for giving an endorsement for transplantation and prior approval should be obtained from the authorization committee. The prime purpose of the enactment is facilitating the transplantation of human organs for the therapeutic purposes. When section 9(3)[2] permits transplant of organs to person not being a near relative, with the prior approval of the authorization committee, there is no logic or rationale to say that swap transactions will not be allowed when members of each pair are not near relatives, even if the authorization committee approves such transactions.
The court directed the committee to consider the applications of the petitioners and approve the same immediately without any further postponement. The chief secretary was directed by court to issue all the obligatory orders and generate a copy of the same acknowledgement before the Registrar General of the high court within a month from the date of receipt of a counterfeit of the judgement.
References:
1.Pratap Giti, “Kerala High court permits organ-swap among non-near relatives, calls for changes to Transplantation of Human Organs Act”
2.Varghese M H, “Swap Transplantation Permissible Even If donor-Recipients Not Near Relatives, Provided Special Reason Exist For Donation: Kerala High Court” <https://www.livelaw.in/news-updates/kerala-high-court-swap-transplants-permissible-for-non-near-relatives-special-reason-for-donation-185589>
3.Indian Express, “Swap transplants permissible even if each donor-recipient pair not near relatives, says HC”
4.Shroff Sunil, “Legal and ethical aspects of organ donation and transplantation” <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779960/>
5.The Indian Express, Philip Shaju, “Nothing like criminal kidney: Kerala HC sets aside authorization panel’s decision” <https://indianexpress.com/article/india/kerala/let-organ-donation-law-become-path-breaker-for-communal-harmony-kerala-hc-7481885/>
6.The Economics Time, “Let organ donation law become path breaker for communal harmony: Kerala High Court”<https://m.economictimes.com/news/india/let-organ-donation-law-become-path-breaker-for-communal-harmony-kerala-high-court/articleshow/85824996.cms>
7.The Hindu, “There is no Criminal organ in human body: Kerala High Court body” <https://www.thehindu.com/news/national/kerala/there-is-no-criminal-organ-in-human-body-kerala-high-court/article36219821.ece>
8.Indiankanoon, “Moideenkutty v The District Level Authorization” <https://indiankanoon.org/doc/41819179/>
[1] A paired kidney exchange, also known as a kidney swap occurs when a living kidney donor is incompatible with the recipient, and exchanges kidneys with another donor/recipient pair. [2] No human organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient.
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