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2024 Supreme(Online)(Mad) 54173
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Unknown, J
vs
Writ Petitions
For the Appellants/Petitioners: Unknown
For the Respondents: Unknown
The court affirmed that kidney donations from non-relatives require Authorisation Committee approval, emphasizing the need for genuine altruism and timely processing of applications to prevent unnecessary bureaucratic delays.
Headnote:(A) Transplantation of Human Organs and Tissues Act, 1994 - Sections 2(f), 2(i), 2(m), and 9(3) - Kidney transplantation from living donors - Approval required from the Authorisation Committee when donors are not near relatives - The hospital's hesitation to forward applications to the Committee necessitates judicial intervention to ensure compliance with statutory requirements. (Paras 6, 8, 28)
(B) Authorisation Committee - The Committee must evaluate applications for organ donation from non-near relatives, ensuring no commercial transactions are involved and that genuine affection or special reasons motivate the donation. (Paras 12, 16, 18)
(C) Informed Consent - Medical practitioners must ensure donors are fully informed of the consequences of organ donation and that their consent is voluntary, without coercion. (Paras 9, 10)
(D) Judicial Oversight - The court emphasizes the need for timely decisions by the Authorisation Committee and the importance of not hindering altruistic donations due to bureaucratic delays. (Paras 22, 28) (E) Altruism - The court recognizes the validity of altruistic motivations for organ donation and emphasizes that suspicion of financial gain should not obstruct the approval process. (Paras 19, 20)
| Table of Content |
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| 1. altruism in organ donation should be presumed unless proven otherwise. (Para 19 , 20) |
| 2. authorisation committee must ensure donor welfare post-donation. (Para 21 , 22 , 23) |
| 3. guidelines for donor support and insurance are necessary. (Para 24 , 25 , 26) |
| 4. applications for organ donation must be processed expeditiously. (Para 27 , 28) |
COMMON ORDER
All these writ petitions are disposed of by a common order since the issues raised therein are identical.
2.The first petitioners in these writ petitions were admitted for renal failure in the second respondent hospital. They are undergoing regular dialysis. Kidney transplantation is the only solution. The second petitioners have come forward to donate their kidneys in favour of the corresponding first petitioners. But the donors who have given consent for transplantation are not “near relatives.” Hence, prior approval from the Authorisation Committee (first respondent) is statutorily required in each case. The hospital is hesitant to forward the papers to the Authorisation Committee for taking appropriate decision. In these circumstances, the present writ petitions came to be filed.
3.The learned counsel appearing for the petitioners reiterated all the contentions set out in the affidavit filed in support of the writ petitions and called upon this Court to grant relief as prayed for. My attention was drawn to the order dated 17.04.2024 made in W.P.No.9306 of 2024. A learned Judge of this Court had directed the hospital concerned to forward the papers / medical summary along with application submitted by the patient to the Authorisation Committee immediately. There was also direction for taking decision within a time frame.
4.When I was inclined to dispose of the present writ petitions on the same lines, the learned counsel for the hospital requested me to take note of the prevailing reality and pass a detailed order. I, thereupon, requested her to circulate a note for my better understanding. The learned counsel was kind enough to comply with my request.
5.The learned Government Advocate for the first respondent submitted that on receipt of the application from the second respondent, the Authorisation Committee will take a call in the matter as per law.
6.I carefully considered the contentions advanced by the learned counsel. The Central Act 42 of 1994 was originally called as “The Transplantation of Human Organs Act, 1994”. It came into force in various States on different dates. The statute underwent substantial amendments vide Act 16 of 2011. The Act now is called as “ The Transplantation of Human Organs and Tissues Act, 1994 ”.
7.The need to pass such a legislation was felt because there was no comprehensive legislation to regulate the removal of organs from living as well as deceased persons and transplantation of such organs. The preamble notes that the Act is also intended to prevent commercial dealings in human organs and tissues. The Act has 25 sections and it is divided into seven chapters. The statutory rules were framed in the year 2014. Since the cases on hand involve donation by persons who are not near relatives, let me examine only those provisions that have a direct bearing on the issue. Section 2 (f), (i) and (m) and Section 9(3) of The Transplantation of Human Organs and Tissues Act, 1994 are as follows:-
(f) “donor” means any person, not less than eighteen years of age, who voluntarily authorises the removal of any of his human organs for therapeutic purposes under sub-section (1) or sub-section (2) of section 3;
(i) “near relative” means spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter;
(m) “recipient” means a person into whom any 3 [human organ or tissue or both] is, or is proposed to be, transplanted;”
“9. Restrictions on removal and transplantation of [human organs or tissues or both]
(3) If any donor authorises the removal of any of his [human organs or tissues or both] before his death under
