#non near realtive donor

[seemabhatnagar]

"Ensuring Fairness: High Court Directs Reconsideration of Transplant Decision"

J. Rajkumar v. The Authorization Committee Transplantation

W.P. 13642/2024 & WMP 14806 & 14807 / 2024

Before the High Court of Madras

Heard by Hon’ble Mr. Justice G R Swaminathan J

Order: The High Court allowed the Writ Petition of the Petitioner also set aside the rejection order of the Authorization Committee Transplantation The Committee / first respondent was directed to re-consider and pass an appropriate order within three weeks from the date of receipt of a copy of the order.

Judgment pronounced on 31.05.2024

Background

Writ Petition under Article 226 of the Constitution of India was filed for the calling of the records of the 1st respondent whereby the authorization committee rejected the petitioner's application for transplantation of Human Organ and to quash the rejection order and direct the 1st respondent to approve the petitioner's application/grant/approval/NOC to the petitioner for his kidney transplantation.

Facts:

1.      The Petitioner aged about 30 years was suffering from chronic kidney disease and a nephrologist had advised him for a kidney transplant. His wife wanted to donate her kidney but because of medical incompatibility transplantation couldn’t happen. Offers were made by other relatives as well but due to incompatibility factors transplantation couldn’t take place.

2.      A known of the family Mrs. Radhika offered to donate her kidney and it was found compatible however, the Authorization Committee Transplant rejected her offer as she was not a relative of the Petitioner.

Contention of the petitioner & the donor

1.      The kidney is offered out of love and affection and for the well-being of the petitioner’s family and there is no economic consideration to it.

Contention of the Government Counsel

1.      The Court shouldn’t interfere in the rejection order of the Authorization Committee Transplantation as the petitioner has the remedy of Appeal as provided under Section 17 of the Transplantation of Human Organs and Tissues Act, 1994.

Observation of the Court

1.      The refusal by hospitals in the State of Tamil Nadu to perform transplants concerning unrelated donors is illegal.

2.      The transplants from non-near relative donors is contemplated under Section 9(3) of the Transplantation of Human Organs and Tissues Act, 1994, and Rules 14 and 19 of the Transplantation of Human Organs and Tissues Rules, 2014 prescribing the procedure

3.      The Form 11 application submitted by the petitioner and the prospective donor was rejected by assigning the following reason “photo evidence and statement are grossly contradictory.”

4.      The opportunity for a personal hearing must be given. If an adverse order is passed, the rights of the patient is at stake. That is why, it is necessary to comply with the principles of natural justice. If any doubt occurs in the minds of the committee members, the applicants must be put on notice and allowed to explain.

5.      The petitioner was not given any opportunity to explain the contradiction noticed by the committee. There has been a gross violation of the principles of natural justice.

6.      The statement made by the prospective donor that he/she is coming forward to donate the organ out of altruism cannot be questioned unless there is definite material to show the passing of consideration. In this case, the minutes do not indicate the existence of commercial dealings between the parties.

Seema Bhatnagar