Point of Law: Sub-section (3A) (a) and (b) of Section 9 of the Transplantation of Human Organs and Tissues 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).

JUDGMENT :

The petitioners are before this Court, aggrieved by the non-consideration of their Ext.P15 and Ext.P36 applications on merits. The petitioners seek to set aside Ext.P39 order of the Authorisation Committee for Transplantation of Human Organs.

2. There are four petitioners in the writ petition. Petitioners 1 and 3 are patients with Kidney problems. They require urgent transplantation of Kidneys. Petitioners 2 and 4 are ready to donate their Kidneys. The 2nd petitioner is the wife of the 3rd petitioner. The 4th petitioner is the father-in-law of the son of the 1st petitioner. In view of the mismatch of blood groups of 2nd and 3rd petitioners and of 1st and 4th petitioners, they submitted application for swap transplantation. Ext.P15 is the Form-3 and Form-11 applications submitted by the 1st petitioner. Ext.P36 is the Form-3, Form-4 and Form-11 applications submitted by the 3rd petitioner.

3. 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 learned counsel for the petitioners argued that the 1st and the 3rd petitioners require urgent kidney transplantation and rejection of their applications would offend their right guaranteed under Article 21 of the Constitution of India.

4. The learned Government Pleader, on the other hand, submitted that though the 2nd petitioner, being wife of the 3rd petitioner, would be a near relative, the 4th petitioner cannot be treated as a near relative as defined under the Transplantation of Human Organs and Tissues Act. Therefore, the Authorisation Committee rightly rejected the 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.

5. Heard the learned counsel for the petitioners and the learned Senior Government Pleader representing the respondent-District Level Authorisation Committee.

6. The Transplantation of Human Organs and Tissues Act, 1994 (Act No.42 of 1994) is enacted to provide for the regulation of removal, storage and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues and for matters connected therewith or incidental thereto. The Act permits and regulates near relative organ transplantation as well as non-near relative transplantation subject to the provisions of the Act, 1994 and the Rules made thereunder.

7. Rule 2(i) defines “near relatives” as spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter. Section 9 of the Act, 1994 reads as follows:

“9. Restrictions on removal and transplantation of human organs or tissues or both - (1) Save as otherwise provided in sub-section (3), 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.

(1A) Where the donor or the recipient being near relative is a foreign national, prior approval of the Authorisation Committee shall be required before removing or transplanting human organ or tissue or both:

Provided that the Authorisation Committee shall not approve such removal or transplantation if the recipient is a foreign national and the donor is an Indian national unless they are near relatives.

(1B) No human organs or tissues or both shall be removed from the body of a minor before his death for the purpose of transplantation except in the manner as may be prescribed.

(1C) No human organs or tissues or both shall be removed from the body of a mentally challenge person before his death for the purpose of transplant