The Act and Rules do not prohibit organ donation by individuals with criminal antecedents, and the Authorization Committee should adopt a pragmatic approach and expedite the decision-making process.

JUDGMENT :

P.V. KUNHIKRISHNAN, J.

1. According to the District Level Authorization Committee for transplantation of Human Organs, Ernakulam, a person who came forward to donate his kidney to a needy patient cannot donate the same because he is involved in multiple criminal offences. I perused the entire provisions in Transplantation of Human Organs and Tissues Act, 1994 (for short ‘Act 1994’) and The Transplantation of Human Organs and Tissues Rules, 2014 (for short ‘Rules 2014’). I see no provision in the Act and Rules to support the stand of the respondent. The Government Pleader also conceded the same. If this stand of the respondent is allowed, I apprehend that, the respondent will reject such applications for permission to donate organs even on the ground that, the donor is a murderer, thief, rapist, or involved in minor criminal offences. I hope, they will not reject the applications because the donor is a Hindu, Christian, Muslim, Sikh, or person in a lower caste after comparing with the religion and caste of the recipient.

2. The short facts of the case are like this:

The 1st petitioner is a kidney patient. He is undergoing treatment for his kidney problem at the Medical Trust Hospital, Ernakulam. It is declared by the medical officers that, both the kidneys of the 1st petitioner spoiled and it needs urgent transplantation. It is the case of the 1st petitioner that, the kidneys of the close relatives of the first petitioner are not suitable for transplantation. His parents are no more. His wife is suffering from diabetes and hypertension. His two children are in their tender age. His three brothers are also diabetic patients. Apart from the above, the 1st petitioner has no other close relatives to donate a kidney. Ext.P1 is the certificate issued by the Assistant Surgeon, Community Health Centre, Nedumankavu showing the seriousness of the illness of the 1st petitioner. The 2nd petitioner was the driver of the 1st petitioner and according to him, he is in close relationship with the first petitioner. He is ready to donate his kidney to the 1st petitioner. Ext.P2 is the certificate issued by the Mayor, Thiruvananthapuram Municipal Corporation certifying that, on inquiry, it is found that the donation of the kidney by the 2nd petitioner to the first petitioner is because of their friendly relationship for the last several years. Ext.P3 is the certificate issued by the President of Nedumpana Grama Panchayat, which is also in tune with Ext.P2. Ext.P4 is the joint affidavit of the petitioners dated 23.02.2021 giving their consent. Ext.P5 is the consent of the wife and brother of the 2nd petitioner, who is the donor. The petitioners submitted Ext.P6 application before the authority concerned in Form 11 for getting permission. Ext. P7 is the application in the prescribed form by the second petitioner. This Court in Ext.P8 judgment, directed the authorities to consider the applications. Even then orders were not passed. Then a contempt case was filed for the noncompliance of the directions in Ext.P8 judgment. Thereafter, as per Ext.P9, the authorisation committee concerned rejected permission with the reasoning that, “the donor is involved in multiple criminal offences.” Aggrieved by Ext.P9 order, this writ petition is filed.

3. Heard the learned counsel for the petitioners and the learned Government Pleader.

4. The learned counsel for the petitioners submitted that Ext.P9 order is unsustainable. The learned counsel submitted that the findings in Ext.P9 that, a person who is involved in multiple criminal offences cannot be a donor is unsustainable in the light of the fact that, there is no prohibition for the same as per the Act 1994 and Rule 2014. The learned counsel submitted that, as per Rule 7(3), the authorization committee needs to consider only the situation narrated in Clause (i) to (ix) in it. There is no prohibition for accepting the organ of a person, who is involved in criminal offences. The learned counsel submitted that