IMPORTANT POINT
The burden of proof for altruistic organ donation lies with the applicants, and the Authorisation Committee must consider all relevant factors without presuming commercial intent.

JUDGMENT :

V.G.ARUN, J.

The first petitioner is a chronic kidney patient, advised to undergo renal transplantation surgery to save his life. The second petitioner has volunteered to donate his organ for conducting the transplantation surgery. As the petitioners are not near relatives, they submitted a joint application, as provided under 9(5) of the Transplantation of Human Organs and Tissues Act, 1994 (the Act for short). The District Level Organ Transplantation Authorisation Committee under the Act rejected the application, suspecting commercial dealing behind the human organ donation and the Appellate Authority upheld the rejection. Hence, this writ petition.

2. Heard Adv.C.A.Chacko for the petitioners, Government Pleader Adv.Deepa Narayanan for respondents 1 to 4 and Adv.Thomas J.Anakkallunkal for the 5th respondent.

3. The writ petition calls for a decision on the correctness of the decision taken by the authorities under the Act, as to the genuineness or otherwise of the altruistic organ donation. The issue has to be decided bearing in mind the fact that the Act is intended to strike a balance between two conflicting needs, viz; the need to prohibit commercial dealings in human organs and the need to bring in a legislation, providing for removal of organs from persons suffering from brain stem death and for altruistic donation by living persons. Section 3 of the Act deals with the authority for removal of human organs or tissues or both. By virtue of Sub section (1) of Section 3, any donor may, in such manner and subject to such conditions as may be prescribed, before his death, authorise the removal of any organ or tissue or both of his body for therapeutic purposes. The restrictions on removal and transplantation of human organs is contained in Section 9, the relevant portion of which reads as under;

“Section 9(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.

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(3) If any donor authorises the removal of any of his human organs or tissues or both before his death under sub-section (1) of Section 3 for transplantation into the body of such recipient not being a near relative as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ or tissue or both shall not be removed and transplanted without the prior approval of the Authorisation Committee.

(4)(a) The composition of the Authorisation Committees shall be such as may be prescribed by the Central Government from time to time.

(b) The State Government and the Union territories shall constitute, by notification, one or more Authorisation Committees consisting of such members as may be nominated by the State Governments and the Union territories on such terms and conditions as may be specified in the notification for the purposes of this section.

(5) On an application jointly made in such form and in such manner as may be prescribed, by the donor and the recipient, the Authorisation Committee shall, after holding an inquiry and after satisfying itself that the applicants have complied with all the requirements of this Act and the rules made thereunder, grant to the applicants approval for the removal and transplantation of the human organ.

(6) If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorisation Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval.”

4. A conjoint reading of Sections 3(1) and 9 shows that, while any donor can authorise the removal of a human organ from his body for therapeutic purposes, if the donor is not a near relative of the recipient, reasons, such as affection or attachment towards the recip