Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 901 (KER)

Shareef K. M. v. State of Kerala

2017-06-19

P.B.SURESH KUMAR

body2017
JUDGMENT : P.B. Suresh Kumar, J. This matter arises under the Transplantation of Human Organs and Tissues Act, 1994 ('the Act'). 2. The first petitioner is suffering from chronic renal failure and is undergoing dialysis. It is stated by the petitioners that the Nephrologists who are treating the first petitioner have advised him that kidney transplantation is the only option to save his life. The case of the petitioners is that the second petitioner who is a friend of the first petitioner has though offered to donate one of his kidneys to the first petitioner, the Authorisation Committee under the Act declined approval for the removal of the organ of the second petitioner. Ext.P9 is the order passed by the Authorisation Committee in this connection. The first petitioner though took up the matter in appeal before the State Government, Ext.P9 order has been confirmed in the appeal. Ext.P12 is the order passed by the State Government in this connection. Exts.P9 and P12 orders are under challenge in this writ petition. 3. Heard the learned counsel for the petitioners as also the learned Government Pleader. 4. Sub-section (3) of Section 9 of the Act provides that if a person authorises removal of any of his organs before his death for transplantation into the body of another, who is not a near relative, such organ shall not be removed or transplanted without the prior approval of the Authorisation Committee. Section 2(i) of the Act defines 'near relative'. Only the spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson and granddaughter would come within the definition of 'near relative'. The second petitioner is admittedly not a near relative of the first petitioner going by the definition contained in the Act. It is in the said circumstances, the petitioners have sought the approval of the Authorisation Committee for the transplantation. Ext. P9 order indicates that the approval sought by the petitioners has been declined for two reasons. The first reason is that there is gross disparity in the financial status of the donor and the recipient and the second reason is that the donor and the recipient's brother could not explain satisfactorily the link between them which led to the offer being made. The second reason has been reinforced in Ext. P9 order stating that the petitioners have not produced any evidence to prove that the donor was working with the recipient. The second reason has been reinforced in Ext. P9 order stating that the petitioners have not produced any evidence to prove that the donor was working with the recipient. It is also observed in Ext. P9 order that the donor gave a false statement before the Committee that he is not married. In Ext. P12 order, the Government seems to have taken the view that there is enough grounds to suspect financial dealings in the transaction and therefore, Ext. P9 order is not liable to be interfered with. 5. The object of the Act is to regulate removal and transplantation of human organs with a view to prohibit commercial dealings in such transactions. A legislation of this nature was necessitated on account of the exploitation of humans for financial benefits in the dealings of organs. In order to achieve the object of the Act, sub-rule (3) of Rule 7 of the Transplantation of Human Organs and Tissues Rules, 2014 ('the Rules') makes it obligatory for the Authorisation Committee to ensure that no payment has been made or promised to be made to the donor or to any other person by the recipient. The sub-rule also makes it obligatory for the Authorisation Committee to satisfy the link between the parties and the circumstances which led to the offer being made. For the said purpose, the Authorisation Committee is empowered to take into account various aspects including the financial status of the parties. The said sub-rule provides that gross disparity in the financial status of the parties shall be evaluated in the backdrop of the objective of the statute. For the said purpose, the Authorisation Committee is empowered to take into account various aspects including the financial status of the parties. The said sub-rule provides that gross disparity in the financial status of the parties shall be evaluated in the backdrop of the objective of the statute. For a proper analysis of the scope of sub-rule (3) of Rule 7 of the Rules, the same needs to be quoted: "(3) When the proposed donor and the recipient are not near relatives, the Authorisation Committee shall,- (i) evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person; (ii) prepare an explanation of the link between them and the circumstances which led to the offer being made; (iii) examine the reasons why the donor wishes to donate; (iv) examine the documentary evidence of the link, e.g. Proof that they have lived together, etc.; (v) examine old photographs showing the donor and the recipient together; (vi) evaluate that there is no middleman or tout involved; (vii) evaluate that financial status of the donor and the recipient by asking them to give appropriate evidence of their vocation and income for the previous three financial years and any gross disparity between the status of the two must be evaluated in the backdrop of the objective of preventing commercial dealing; (viii) ensure that the donor is not a drug addict; (ix) ensure that the near relative or if near relative is not available, any adult person related to donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness about his or her intention to donate an organ or tissue, the authenticity of the link between the donor and the recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of." It is common knowledge that large number of patients need donors for organ transplantation to save their lives and only a very few are fortunate to find matching donors from among their near relatives. Going by the scheme of the Act, transplantation outside near relatives is permissible only by reason of affection or attachment towards the recipient or for any other special reasons. Going by the scheme of the Act, transplantation outside near relatives is permissible only by reason of affection or attachment towards the recipient or for any other special reasons. As far as the present case is concerned, the case of the petitioners is that the second petitioner proposes to donate his organ to the first petitioner by reason of his affection towards the first petitioner as they had previous acquaintance. The Authorisation Committee is required to affirm cases of this nature. The question whether the consent given by a person to donate his organ to another is by reason of his affection towards him can be determined only from the surrounding circumstances as the affection of one person towards another is a state of mind. The statute does not prohibit transplantation. It only regulates transplantation with a view to avoid exploitation in the dealings of organs for financial benefits. As such, if circumstances indicate a possible relationship for one person to donate his organ to save the life of another, according to me, the approval sought has to be granted. 6. As noted above, one of the reasons stated by the Authorisation Committee in the instant case to decline the approval sought by the petitioners is that there is gross disparity in the financial status of the donor and recipient. Gross disparity in the financial status is certainly a factor to be gone into by the Authorisation Committee to ascertain whether there is any financial dealings in the transaction. But, that does not mean that the Authorisation Committee is prevented from granting approval for transplantation, if there is gross disparity in the financial status of the parties. Voluntary donation of an organ by a person is a self deprivation of the highest order and it is inhuman to hold that such sacrifices would be made by people only based on monetary considerations. The materials on record do not indicate that there is gross disparity in the financial status of the parties. Even assuming that there is disparity in the financial status of the parties, the same by itself is not a ground to decline the approval for transplantation. 7. The other reason stated by the Authorisation Committee to decline the approval sought by the petitioners, as noted above, is that the petitioners have not satisfactorily explained the link between them which led to the offer. 7. The other reason stated by the Authorisation Committee to decline the approval sought by the petitioners, as noted above, is that the petitioners have not satisfactorily explained the link between them which led to the offer. Since the issue is one which has a direct impact on the life of a person, this Court felt it necessary to interact with the second petitioner. Consequently, the second petitioner appeared before the Court and confirmed that he had acquaintance with the first petitioner as they were working together as employees in a construction field and that he has decided to donate his organ voluntarily to the first petitioner to save his life due to his love and affection towards him. In answer to a question put by the Court, the second petitioner has stated that he used to donate blood to the needy whenever there is an occasion for the same. As regards his matrimonial status, the version of the second petitioner was that though he was living with a lady for quite some time and he has three children in that relationship, there was no marriage between them and that the said lady is not residing with him now. The father of the second petitioner who was also present in Court along with the second petitioner has informed that he permitted his son to donate his kidney to the first petitioner when the second petitioner sought his view in the matter. The father of the second petitioner confirms that the second petitioner is taking care of his children. The brother of the first petitioner was also present in Court. The first petitioner is only aged 30 years. Ext. P1 is a letter addressed by the Assistant Commissioner of Police, Ernakulm to the hospital where the first petitioner is presently undergoing treatment. In Ext. P1, it is stated that no materials whatsoever could be collected by the Police to indicate that the donation of the organ proposed by the second petitioner is for consideration. On an evaluation of the entire materials on record and the circumstances under which the parties are placed, I also do not find any circumstances to infer that there is any financial dealings involved in the transaction. As noted above, the appellate authority does not find any material to infer that there is financial dealings in the transaction. On an evaluation of the entire materials on record and the circumstances under which the parties are placed, I also do not find any circumstances to infer that there is any financial dealings involved in the transaction. As noted above, the appellate authority does not find any material to infer that there is financial dealings in the transaction. Instead, what the appellate authority states in the impugned order is only that the circumstances give rise grounds to suspect financial dealings in the transaction. As noted above, the statute does not prohibit transplantation. It only regulates transplantation to prevent financial dealings in it. As such, suspicion however strong, according to me, cannot be a reason to decline the approval sought. 8. On an evaluation of the entire materials on record, I am of the view that the petitioners are entitled to the relief sought in the writ petition. The writ petition is, therefore, allowed, Exts. P9 and P12 orders are quashed and the Authorisation Committee is directed to pass orders approving the transplantation requested for by the petitioners. Orders in this connection shall be passed as expeditiously as possible.