When documentary evidence, such as birth certificates and identity documents, clearly establishes a parental relationship, the Authorization Committee cannot unreasonably reject a live kidney donation request or mandate unnecessary invasive procedures like DNA testing to verify maternity.

ORDER :

G. R. SWAMINATHAN, J.

Heard both sides.

2. In the present case, since the 2^nd petitioner herein has renal issues and requires emergent Kidney transplantation, he has come down to Chennai to undergo the requisite procedure in the 3^rd respondent Hospital. The 1^st petitioner, who is none other than the mother of the 2^nd petitioner has come forward to donate one of her Kidneys. Therefore, necessary applications were placed before the 2^nd respondent/Authorization Committee. The Authorization Committee did not grant approval on the ground that the relationship between the Donor and the Patient has not been established. Challenging the stand of the Authorization Committee, the present writ petition has been filed.

3. When the Donor claims that the recipient / patient is none other than her own biological son, this Court is unable to understand as to why the request of the petitioners has been casually ignored.

4. My attention is drawn to the order dated 30.05.2024 made in W.P.No.13918 of 2024 etc batch. The relevant portion of the said order is extracted hereunder:

“13. From the language of Form-18 certificate issued by the Authorisation Committee, one can conclude that permission will be granted, if the donation is out of love and affection and there is no financial transaction between recipient and donor and there is no pressure on / coercion of the donor. The members of the Authorisation Committee are human beings. What goes into their thought process? One factor that is taken into account is the material indicating the length of association between the donor and the recipient. This may not always be a sound approach. There is something called “love at first sight”. Love and affection are intangible sentiments. On the other hand, time is a measurable. Something that cannot be measured cannot be determined by a measurable value.

14.I am conscious of the decision of the Hon-ble Division Bench of Bombay High Court reported in 2012 SCC Online Bom 64 (Sonia Ajit Vayklip Vs. Hospital Committee, Lilavati Hospital ). It was held that where the donor and the recipient are shown to be near relatives and the case does not fall under any of the three exceptions set out in Section 9(4) of the Act, the Authorisation Committee has no power to make further enquiry about the motive of donation because in such cases there would be no commercial element. After so holding, the learned Judges went on to observe that where the donor is not a near relative, the burden is on the applicants to establish the real intent by placing relevant materials for consideration of the Authorisation Committee and heavy burden lies on them to establish.

17.Let us put ourselves in the shoes of the applicants. They can only assert that there is no commercial dealing. They cannot be called upon to prove the negative. Rule 17 provides for scrutiny of application. In case of doubt, explanation can be sought from the applicants and there can also be verification done through the officials of the Government. Too much of burden cannot be laid on the shoulders of the applicants. Unless there is definite material to establish that there are financial dealings involving the parties, permission ought not to be withheld or rejected. If the donor states that out of love and affection, he / she is making the donation, in the absence of any credible reason, the averment should not be doubted. The Government must come out with definite guidelines in this regard. Otherwise, the issue will be left to the