P.C.:

1. This petition involves a peculiar issue arising under the Transplantation of Human Organs and Tissues Act, 1994 (for short, “1994 Act”). The concern of the petitioner is in regard to a pre-emptive kidney transplant. He is certified to be a patient of Chronic Kidney Disease (CKD) Stage-V, but not on dialysis. The petitioner asserts that being a patient of CKD stage-V, due to polycystic kidney disease, he would require a kidney transplantation from a cadaveric donor, as the petitioner was not having a suitable donor in his family. The petitioner accordingly intended a registration for cadaveric kidney transplantation. The grievance of the petitioner is that such application of the petitioner is not being registered.

2. The concerned authority which would register the petitioner for kidney transplant is respondent no.2-Zonal Transplant Coordination Centre at Pune. Respondent no.2, however, is not accepting the petitioner's registration for kidney transplant referring to the “Allocation Criteria for Deceased Donor Kidney Transplant Guidelines”, a copy of which is annexed to the petition (page 108A of the paper-book), which inter alia provides for recipient registration, listing and scoring system in the waiting list, on the ground that the petitioner does not comply with paragraph 3 of the said guidelines namely that the patient should be a case of end stage renal disease on maintenance dialysis for more than three months on regular basis. We note the guidelines which read thus:-

“ ALLOCATION CRITERIA

FOR DECEASED DONOR KIDNEY TRANSPLANT

(GUIDELINES)

Preamble

Organ transplant has two sources: living donor and deceased donor. In case of living denor source, donor is already decided for a specific recipient. For deceased donor source, process, influenced by a number of factors including medical urgency and donor & recipient matching Following facts need to be kept in mind for organ allocation for kidney transplantation.

CERTAIN FACTS FOR END STAGE RENAL DISEASE (ESRD)

1. There is disparity between number of recipients requiring kidney transplant and the deceased organs available for kidney transplantation.

2. Some patients need, kidney transplant on priority basis because of their medical condition, as delay in transplant may lead to mortality.

3. For End Stage Renal Disease (ESRD), maintenance dialysis is an acceptable and reasonably good alternate therapy so for

majority of ESRD patients, renal transplant is not an emergency procedure.

RECIPIENT REGISTRATION, LISTING AND SCORING SYSTEM IN THE WAITING LIST (Before deceased donor availability)

1 Patient is to be registered by the concerned hospital through online registration form on website wawwunattaughtwingov.in

2. A kidney advisory committee will approve registration and urgency criteria, if any.

The kidney advisory committee will confirm need for renal transplant of every newly registered patient. Once approved, ONLY then patient will be put on active list in the system and ALLOCATION SCORING for that patient will be done based on the guidelines formed.

3. Patient should be a case of End Stage Renal Disease on Maintenance dialysis for more than three months on regular basis.

4. Patient should not have an absolute contraindication for renal transplant, as given under:

a. Advanced untreatable cardiovascular disease

b. Irreversible cerebrovascular accident

c. Inoperable malignancy

d. Untreatable major psychiatric illness (to be certified by a psychiatrist)

5. Patient should be registered ONLY in ONE hospital registered under the Transplantation of Human Organs and Tissues Act (THOTA) with State authority.

However, he/she can change the hospital at any stage and his allocation scoring and seniority in central waiting list will not change. However, his/her seniority in the waiting list of locally available kidney, with the new Hospital will be applicable one month after date of change.

6. Patient can be registered for deceased donor even though patient is waiting for living donor transplant.

7. Stat