The court ruled that the absence of explicit provisions for kidney transplantation by swapping in the Act does not prevent its execution, especially under urgent medical conditions.

ORDER: 

This writ petition is filed seeking the following relief:

“ to issue an appropriate writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned order of the 2 nd respondent in rejecting petitioners application for renal kidney swap transplantation vide proceedings in Rc.No.23433 and 23434/MAK/2024, dt.03.09. 2024 as illegal, arbitrary and contrary to provisions of Transplantation of Human organs and Tissues Act, 1994 and consequently set aside the same with a direction to grant permission for renal kidney swap transplantation to the petitioners.”

2. The case of petitioners is that petitioner Nos.1 and 3 are suffering from end stage Renal disease (chronic kidney disease stage V), and on the advice of doctors for kidney transplantation, they have been undergoing dialysis. Petitioner No.2 being wife of petitioner No.1 and petitioner No.4-wife to petitioner No.3 are willing to donate one kidney to their respective husband. However, after test, it was found that the 2 nd petitioner is eligible to donate to the 3 rd petitioner and the 4 th petitioner is eligible to donate kidney to the 1 st petitioner and hence as recommended by Doctors petitioners have applied for kidney swap transplantation to the 2 nd respondent. The 2 nd respondent rejected the application vide Rc.No.23433 and 23434/MAK/2024, dated 03.09.2024 stating that swap transplantation is not permitted as per existing Rules.

3. Learned counsel for the petitioner, Sri K.Rathanga - Pani Reddy, submits that in similar circumstances this Court disposed of Writ Petition No.29228 of 2024 by order dated 25.10.2024 directing the respondent authorities to proceed with the treatment procedure, by duly addressing/sensitizing the donor/recipient on the pre and post-treatment medical needs. He submits that the present writ petition also stands on the same footing and prays this Court to direct the respondent authorities in the same lines.

4. Learned Assistant Government Pleader for Medical, Health and Family Welfare submits that the contention of petitioners that in a similar case of transplantation in  W.P.No.29228 of 2024 by swapping, this Court granted a direction and therefore the respondent ought to have granted permission cannot be countenanced, as that matter is under consideration by the respondent authorities, and the file has not been further processed for the grant of the swap transplantation in that case.

5. It may be noted that petitioner Nos.2 and 4 were willing to donate kidney to petitioner Nos.1 and 3, however, upon conducting necessary medical tests, it was found that petitioner No.2 is eligible to donate kidney to petitioner No.3, and petitioner No.4 is eligible to donate kidney to petitioner No.1. It may further be noted that apparently it is medical suitability/receptivity of kidney as per the medical tests conducted that has given rise to the situation of request for transplantation by swapping of donors. It appears that the only hitch in the present case before the respondent authorities is that the Telangana Transplantation of Human Organs Act ,1995 (for short ‘the Act’) does not specifically mention or use the words ‘transplantation by swapping’.

6. It may be noted that the request for swapping of donors for kidney transplantation has arisen due to a peculiar situation thrown up by the result of medical tests which indicated that petitioner No.2 is medically suitable to donate kidney to petitioner No.3 and petitioner No.4 is medically suitable to donate kidney to petitioner No.1; and there is no pre-meditated motive to circumvent the procedure prescribed under the Act.

7. Keeping in view the peculiar nature of the facts of the present case and admittedly there being no deviation of the Rules and Regulations prescribed under the Act, and furthermore the request for swapping of kidney donors for transplantation being solely on the ground of medical suitability of donors, and further considering the