Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 2610 (KER)

Sibi Joseph, S/o Joseph Thomas v. State Of Kerala

2025-10-07

SHOBA ANNAMMA EAPEN

body2025
JUDGMENT : SHOBA ANNAMMA EAPEN, J. The first petitioner is a renal patient undergoing dialysis since April,2023 in Oman. He was advised to undergo kidney transplantation. Since the wife and brother of the first petitioner are both working in Army, they cannot donate their kidney to the first petitioner. The second petitioner has volunteered to donate his kidney to the first petitioner for transplantation. They approached the Deputy Superintendent, Ambalappuzha for police clearance, but the request for the petitioners was rejected as per Ext.P5 and No Objection Certificate was not granted. Thereafter, they approached this Court and as per Ext.P6 judgment of this Court in W.P(C) No.37861 of 2024, the petitioners were directed to approach the District Level Organ Transplantation Authorisation Committee (for short 'DLAC') without considering the report of the Deputy Superintendent, Ambalappuzha. The petitioners approached the DLAC, but their request was rejected on the basis of the second report of the Deputy Superintendent, Ambalappuzha, as per Ext.P7 dated 13.12.2024. Again, the petitioners have approached this Court by filing WP(C) No.1757/2025 in which this Court dismissed the writ petition reserving the right of the petitioners to invoke the statutory remedy of filing an appeal to the State Government under Section 17 of the Transplantation of Human Organs and Tissues Act, 1994 (for short 'the THOT Act'). As per Ext.P9, the State Level Technical Committee was constituted for consideration of the appeal and the appeal was rejected on the ground that the first petitioner failed to establish a credible link between the donor and the recipient. Aggrieved by the same, the petitioners have approached this court with the above writ petition. 2. I have heard the learned counsel appearing for the petitioners, the learned Government Pleader appearing for the first respondent and the learned Standing Counsel appearing for the second respondent. 3. Learned counsel appearing for the petitioners submitted that the order dated 13.12.2024 of the DLAC and the order dated 18.03.2025 of the State Level Technical Committee are bereft of any reason. Learned counsel appearing for the petitioners further submitted that after rejection by the DLAC, though the appeal was filed before the State Government, they have not considered the altruism of the second petitioner for donating the kidney. It is further submitted that both authorities have found no evidence of monetary transactions between the petitioners regarding the transplantation. Learned counsel appearing for the petitioners further submitted that after rejection by the DLAC, though the appeal was filed before the State Government, they have not considered the altruism of the second petitioner for donating the kidney. It is further submitted that both authorities have found no evidence of monetary transactions between the petitioners regarding the transplantation. Learned counsel further submitted that since the first petitioner has no close relatives to donate kidney, the second petitioner, who has come forward towards altruism, seeks order for kidney transplantation. 4. The Learned Standing Counsel appearing for the second respondent, however, submits that the donor, a 36-year- old mother, has three children aged 16, 13, and 12 and while considering the application, specific attention should have been given to the provisions under Rule 22 of the Transplantation of Human Organs and Tissues Rules, 2014 ('the THOT Rules,2014'), specifically the precautions applicable to female donors. It is also submitted that both the authorities have found that there is no altruism and there is lack of supporting documents and there is inability of the donor and recipient to cite any incident to prove the emotional attachment and hence, the authorities have rejected the prayer for transplantation of kidney. 5. I have considered the rival contentions raised on both sides. 6. Section 9 of the THOT Act prescribes the restrictions on removal and transplantation of human organs or tissues or both. As per Rule 7(3) of the THOT Rules,2014, while evaluating the applications, the Authorisation Committee has to carry out various evaluations and enquiries. Rule 7(3) of the THOT Rules,2014 reads as follows:- “7. 6. Section 9 of the THOT Act prescribes the restrictions on removal and transplantation of human organs or tissues or both. As per Rule 7(3) of the THOT Rules,2014, while evaluating the applications, the Authorisation Committee has to carry out various evaluations and enquiries. Rule 7(3) of the THOT Rules,2014 reads as follows:- “7. Authorisation Committee.- (1) xxxxxxxx (2) xxxxxxxxxx xxxxxxx (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) examined 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 of disagreement or objection of such kin shall also be recorded and taken note of.” 7. On a perusal of Ext.P7 order passed by the DLAC, the Deputy Superintendent, Ambalappuzha had conducted a detailed enquiry into the matter and has found that the claimed link between the donor and recipient's family was fabricated and it was found that the donor's husband's mother never worked in the recipient's household during 2019-21 and it was also found that no genuine altruistic intent was evident in the donor's decision to donate her kidney. 8. 8. In the writ petition, the relationship of the second petitioner with the first petitioner was explained as follows:- “.............The second petitioner knows the first petitioner as a relative of the second petitioner had worked with the first petitioner while in Oman and as a result the second petitioner is well acquainted with the first petitioner and when the second petitioner came to know about the problem of the first petitioner she contacted the petitioner and they both agreed to check for organ transplant compatibility and as result they found out that they were compatible and as result the second petitioner volunteered as donor for the first petitioner.” The Committee while considering the application have conducted enquiry on the basis of the procedures to be complied under Rule 7(3) of the THOT Rules,2014. On a reading of Ext.P9 order, it is seen that the State Level Technical Committee have found that the petition lacks merit and substance and the petitioners failed to establish a credible link between the donor and recipient, combined with the inconsistencies in statements, lack of supporting documentation and the inability of the donor and recipient to cite any incident or anecdote to prove the emotional attachment. 9. On a perusal of Exts.P7 and P9 orders passed, it is seen that the petitioners failed to establish their relationship, casting doubt on the altruistic nature of the proposed kidney donation by the second petitioner. Rule 22 of the THOT Rules,2014 reads as follows:- “ 22. Precautions in case of woman donor. -- In case where the donor is a woman, greater precautions ought to be taken and her identity and independent consent should be confirmed by a person other than the recipient.” On a perusal of the afore Rules, it is seen that the Committee have to exercise greater caution in verifying the donor's identity and ensuring her independent consent, especially since the donor is a woman, through a person unconnected to the recipient. The State Level Technical Committee has considered the THOT Rules, 2014 and rejected the application for renal transplantation. The committee raised serious concerns about the potential consequences for the donor’s long-term health and her ability to care for her children post-transplant. The petitioners also failed to prove the authenticity of the link between the donor and the recipient. I find that the rejection by the authorities are on valid grounds. The committee raised serious concerns about the potential consequences for the donor’s long-term health and her ability to care for her children post-transplant. The petitioners also failed to prove the authenticity of the link between the donor and the recipient. I find that the rejection by the authorities are on valid grounds. I do not find any reason to interfere with the same. Accordingly, the writ petition is dismissed.