Ker HC | Swap Kidney Transplantation between non-relatives; HC removes legal hurdles

Kerala High Court: N. Nagaresh, J., allowed swap kidney transplant between non-relatives. Opining that any law prescribing procedure for organ transplantation should satisfy the test of reasonableness, the Bench remarked,

“When Section 9(3) permits transplant of organs to persons not being a near relative, with the prior approval of the Authorisation Committee, there is no logic or rationale to say that swap transaction will not be allowed when members of each pair are not near relatives, even if the Authorisation Committee approves such transaction.”

Background

The petitioners were aggrieved by the non-consideration of their applications for swap kidney transplantation on merits by the Authorisation Committee for Transplantation of Human Organs. Petitioners 1 and 3 were patients with Kidney problems who required urgent transplantation of Kidneys. Petitioners 2 and 4 were ready to donate their Kidneys.

The petitioner 2 was the wife of the petitioner 3 while petitioner 4 was the father-in-law of the son of the petitioner 1. In view of the mismatch of blood groups of petitioner 2 and 3 and of petitioner 1 and 4, they had submitted application for swap transplantation. The Authorisation Committee, however, 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 and Guidelines for altruistic and exchange donation issued as per G.O. (MS) No.26/2018/H&FWD dated 15-02-2018.

The grievance of the petitioners was that the petitioners 1 and 3 required urgent kidney transplantation and rejection of their applications would offend their right guaranteed under Article 21 of the Constitution.

The stand taken by the State was that, though the petitioner 2, being wife of petitioner 3 would be a near relative, the petitioner 4 could not be treated as a near relative as defined under the Transplantation of Human Organs and Tissues Act.

Findings of the Court

In view of sub-section (1) of Section 9, no human organ or tissue or both 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, save as otherwise provided in sub-section (3), which says that a donor can authorise the removal of any of his human organs for the benefit of such recipient, not being a near relative, for a specific reason (of affection or attachment or for any other special reasons), but such human organ shall not be removed and transplanted without the prior approval of the Authorisation Committee.

Therefore, the Bench observed that the Act contemplates non-near relative organ transplantation and the condition was that the donor should have a special reason for giving authorisation for transplantation and prior approval should be obtained from the Authorisation Committee. Evidently, Section 9(3A) permits swap transplants to solve the issue of biological incompatibility of organ of the donor to the recipient.

Although Section 9(3A) starts with a non obstante clause, a reading of Section 9(3) and Section 9(3A) together as a whole, would indicate that the non obstante clause in Section 9(3A) is intended only to ensure that the swap transplants are carried out with the prior approval of the Authorisation Committee.

Hence, the Bench stated that Section 9(3A) should be read down so as to give full effect to Section 9(3) under which non-near relative transplants are allowed with the approval of the Authorisation Committee.

Since Rule 7(4) of the Transplantation of Human Organs and Tissues Rules, 2014 directs that swap donations shall be permissible only from near relatives, the Bench observed that it must be noted that sub-rule (4) of Rule 7 in effect curtails the power conferred on the Authorisation Committee to give prior approval to organ transplantation in cases of non-near relative organ transplantation, even when such transplantation is supported by reasons of the nature indicated in Section 9(3) of the Act, 1994.

To cure the statutory impediment, the Bench held that Section 9(3A) should be read in consonance with Section 9(3) so as to permit non-near relative swap organ transplant with the approval of the Authorisation Committee for special reasons contemplated under Section 9(3), and that the provision in the G.O. dated 15-02-2018, which was based on Section 9(3A) could not be sustained.

Verdict

In the backdrop of above, the Bench reached to following conclusions:

1. Sub-section (3A) (a) and (b) of Section 9 of the Act, 1994 to the extent it permits Swap Transplants only in cases of near relatives and curtails the powers of Authorisation Committees to approve such non-near relative transplants even for special reasons as contemplated in Section 9(3), have to be read down, to be in consonance with Section 9(3).
2. Swap Transplants will be permissible even if each pair of donor-recipients are not near relatives, provided there exists special reason for the donor to donate his/her organ as contemplated in Section 9(3) and the Authorisation Committee gives prior approval for the swap transplants after scrutinising the applications on the parameters provided in Rule 7(3) Rules, 2014.
3. The provision under the head ‘Swap Donation’ contained in the Guidelines for Altruistic and Exchange Donation framed by the Government of Kerala, Health and Family Welfare Department, as per G.O. (MS) No.26/2018/H&FWD dated 15-02-2018, to the extent it permits Swap Donations only between near relatives, will be inoperative, as it goes against the provisions of Section 9(3) of the Act, 1994.

[Moideenkuty v. District Level Authorisation Committee for Transplantation of Human Organs, 2021 SCC OnLine Ker 4315, Decided on 11-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance By:

For the Petitioners: T.P.Sajid, Advocate and Shifa Latheef, Advocate

For the Respondents: Princy Xavier, Sr. Govt.Pleader