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2021 DIGILAW 883 (KER)

Reeja P. , W/o. Haridasan v. District Level Authorization Committee For Transplantation Of Human Organs, Thrissur

2021-09-29

P.V.KUNHIKRISHNAN

body2021
JUDGMENT : above writ petition is filed with following prayers: “a). Call for records leading upto Ext.P14 order and quash same by issuance of a writ of certiorari or any other appropriate writ, order or direction. b) Issue a writ of mandamus or any other appropriate writ, order or direction directing respondent to issue approval for unrelated kidney transplantation to petitioners as per Ext.P11 and P12 applications. c) Pass any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and petitioner may pray from time to time.” 2. 1st petitioner is a kidney patient. She is undergoing treatment for kidney problem at West Fort Hi-Tech Hospital, Thrissur. It is medically found that both kidneys of 1st petitioner have spoiled and it needs urgent transplantation. She is undergoing dialysis thrice in a week. Ext.P1 is certificate issued by hospital concerned. It is submitted that kidneys of close relatives of 1st petitioner is not suitable for transplantation. father of st petitioner is aged 80 years and mother is aged 75 years and they are suffering from old age ailments. elder brother of 1st petitioner is from different blood group and younger brother is a diabetic patient. Her husband is aged 54 years and is also a diabetic patient. Children aged 18 and 15 years are at tender age. It is case of petitioner that she has no other close relatives. Therefore, 1st petitioner could not transplant kidney from close relatives. It is submitted by learned counsel for petitioner that younger son of 1st petitioner is suffering from Spastic Cerebral Palsy. Ext.P2 is certificate issued by District Medical Board, District Hospital, Manjeri showing that child is suffering from Cerebral Palsy. It is case of 1st petitioner that she has to look after this child also with meager income of her husband from his tea shop. Since 1st petitioner is also detected with kidney disease, pathetic story of 1st petitioner and her family was reported in Mathrubhumi and an online news of Mathrubhumi dated 10.09.2021 is produced as Ext.P3. It is submitted that since kidney of close relatives of 1st petitioner is not suitable for transplantation, 2nd petitioner, considering pathetic situation of 1st petitioner and her family, has informed her willingness to donate her kidney to 1st petitioner. husband of 2nd petitioner was working with husband of 1st petitioner in his hotel for several years. It is submitted that since kidney of close relatives of 1st petitioner is not suitable for transplantation, 2nd petitioner, considering pathetic situation of 1st petitioner and her family, has informed her willingness to donate her kidney to 1st petitioner. husband of 2nd petitioner was working with husband of 1st petitioner in his hotel for several years. Since hotel was closed due to Covid-19 pandemic, now husband of 2nd petitioner is working in his Village. It is case of petitioners that families of petitioners are very close and they know each other. According to 2nd petitioner, it is a voluntary act from her side to donate kidney to 1st petitioner. 3. Ext.P4 is certificate issued by Deputy Superintendent of Police, Chittur. Ext.P5 is certificate issued by President of Cherukavu Grama Panchayat. Ext.P6 is certificate issued by Member of Legislative Assembly, Nenmara. Ext.P7 is affidavit of 2nd respondent. Ext.P8 is identification certificate of donor and her father. Ext.P9 is identification certificate of donor and her mother. Similarly, Ext.P10 is identification certificate of donor and her husband. Exts.P11 and P12 are applications submitted by petitioners for organ transplantation. Ext.P13 is communication issued by hospital concerned to respondents. Ext.P14 is order passed by respondent. respondent rejected application submitted by petitioner. Aggrieved by same, this writ petition is filed. 4. Heard learned counsel for petitioners and learned Government Pleader for respondent. 5. learned counsel for petitioner submitted that 1st petitioner is in a pathetic situation now and she is undergoing dialysis thrice in a week. Her younger son is a Cerebral Palsy affected child and she is only person to look after him. Her both kidneys are now spoiled. In such situation, 2nd petitioner voluntarily decided to help her. finding in Ext.P14 is absolutely incorrect. It is submitted that 1st and 2nd petitioners are from an economically weaker section, which is clear from Ext.P3 news item published in Mathrubhumi. Therefore, respondent erred in finding that since donor is from a poor family, application cannot be considered. learned counsel submitted that 2nd petitioner is also from a poor family and when she appeared for interrogation before a team of expert doctors, there was some confusion while submitting details. learned counsel submitted that 2nd petitioner will be able to submit facts before committee and there is no contradiction as stated in Ext.P14. 6. learned counsel submitted that 2nd petitioner is also from a poor family and when she appeared for interrogation before a team of expert doctors, there was some confusion while submitting details. learned counsel submitted that 2nd petitioner will be able to submit facts before committee and there is no contradiction as stated in Ext.P14. 6. learned Government Pleader submitted that respondent, after going through records and after interrogating petitioners, came to conclusion that approval cannot be granted in this case. Therefore, this Court may not interfere with same. 7. I perused Ext.P14 order. It would be better to extract relevant portion in Ext.P14: “Permission is not granted for following reasons. Altruism regarding transplantation is not proved before committee. Document signed by village officer pudunagaram is found to be false from interrogation with his husband and wife enrolled in document. Donor is coming from a poor family and staying at Kannanaloor colony, at Kollam District where it was learned there were several unrelated previous kidney donors. Police verification from Kollam is lacking. Rule 7 Sub Rule (3)(1) to (VI) is not complied with transplantation of Human Organs and Tissues Act 1994 and transplantation of Human Organs and Tissues Rules 2014. Hence committee unanimously rejected case.” 8. One of ground mentioned in Ext.P14 is that document signed by Village Officer, Pudunagaram is found to be false after interrogation with husband and wife enrolled in document. According to petitioners, husband of donor is from Kollam, but they are settled at Palakkad. While making submission, there was some confusion and that is why respondent concluded that document signed by Village Officer is found to be false. I don't know, how respondent can conclude that document signed by Village Officer is false. Respondent has no authority to declare that a certificate issued by a Village Officer is false, while considering an application for transplantation. learned counsel submitted that 2nd petitioner will be able to explain same before committee, if an opportunity is given. While interrogating parties, respondent should take a mild stand. intention of respondent should be only to find out whether there is commercial transaction. Parties may be coming from remote village area. A friendly atmosphere is to be created by respondent while interrogating. 9. second ground mentioned in Ext.P14 is that donor is coming from a poor family and staying at Kannanaloor Colony at Kollam district. intention of respondent should be only to find out whether there is commercial transaction. Parties may be coming from remote village area. A friendly atmosphere is to be created by respondent while interrogating. 9. second ground mentioned in Ext.P14 is that donor is coming from a poor family and staying at Kannanaloor Colony at Kollam district. I failed to understand this reasoning of respondent. Simply because a donor is coming from a poor family, there is no hindrance for donating organs. If that is case, 1st petitioner is also from a poor family. For this purpose, this Court can take judicial notice of Ext.P3 report of Mathrubhumi which is one of leading Malayalam daily newspaper in Kerala. We have to appreciate such news items items from print and visual media, so that people with big hearts can come forward to help needy people. I read Ext.P3 news item. From this, it is clear that donor and recipient are from poor family. There is no rule that, poor people can't donate organs. Being poor is not a sin. people with big hearts are there in plenty in our country and they can save them. That is how we can reduce difference between haves and have-nots. 10. It is further stated in Ext.P14 that, there were several unrelated kidney donors in area where donor resides. That also cannot be accepted without any evidence. I think it is a matter to be reconsidered by respondent in facts and circumstances of case. points to be decided by respondent is whether there is any commercial transaction. 11. In such circumstances, according to me, Ext.P14 can be set aside and matter can be reconsidered by respondent. Therefore, writ petition is allowed in following lines: 1. Ext.P14 is set aside. 2. respondent is directed to reconsider application of petitioners and pass appropriate orders, in accordance with law, at any rate within a period of one week from date of receipt of a copy of this judgment.