Kerala High Court permits organ-swap among non-near relatives, calls for changes to Transplantation of Human Organs Act

In a significant judgement regarding organ transplantation laws in India, the Kerala High Court on Monday ruled that “swap transplants” will be permissible even if donor and recipient are not near-relatives, provided the organ donor has a special reason (Moideenkutty v. District Level Authorisation Committee for Transplantation of Human Organs)..Justice N Nagaresh passed the judgment which also recommended changes to the Transplantation of Human Organs and Tissues Act, 1994 (Act)."In a case where a citizen’s life can be protected and preserved only by transplant of human organ or tissue, the citizen has a fundamental right under Article 21 of the Constitution to undergo organ transplantation, which right is subject only to the procedure established by law. Any law prescribing procedure for organ transplantation should therefore satisfy the test of reasonableness," the judgment said. .The Court focused primarily on Section 9 of the Act. While Section 9(3) permits organ transplants between persons who are not near relatives, Section 9(3A) prohibits swap transplantation between not-near relatives. This, the Court opined, is illogical and therefore, the provision must be read down to give full effect to Section 9(3)."When Section 9(3) permits transplant of organs to persons not being a near relative, with the prior approval of the Authorisation Committee, there is no logic or rationale to say that swap transaction will not be allowed when members of each pair are not near relatives, even if the Authorisation Committee approves such transaction. Therefore, Section 9(3A) should be read down so as to give full effect to Section 9(3) under which non-near relative transplants are allowed with the approval of the Authorisation Committee," the judgment stated..The Court also found similar inconsistencies in a government order issued by Kerala called 'Guidelines for Altruistic and Exchange Donation', which it incorporated in its order holding certain parts of it inoperable..The main points of the Court's order were threefold:Sub-section (3A) (a) and (b) of Section 9 of the Act to the extent it permits Swap Transplants only in cases of near relatives and curtails the powers of Authorisation Committees to approve such non-near relative transplants even for special reasons as contemplated in Section 9(3), have to be read down, to be in consonance with Section 9(3).Swap Transplants will be permissible even if each pair of donor-recipients are not near relatives, provided there exists special reason for the donor to donate his/her organ as contemplated in Section 9(3) and the Authorisation Committee gives prior approval for the swap transplants after scrutinising the applications on the parameters provided in Rule 7(3) of the Transplantation of Human Organs and Tissues Rules, 2014.The provision under the head ‘Swap Donation’ contained in the Guidelines for Altruistic and Exchange Donation framed by the Government of Kerala, Health and Family Welfare Department, as per GO dated 15.02.2018, to the extent it permits Swap Donations only between near relatives, will be inoperative, as it goes against the provisions of Section 9(3) of the Act..The Court issued the order on a petition filed by four persons who were members of two donor-recipient pairs. Petitioners 2 and 4 were ready to donate their kidneys. The 2nd petitioner was the wife of the 3rd petitioner. The 4th petitioner was the father-in-law of the son of the 1st petitioner. In view of the mismatch of blood groups of 2nd and 3rd petitioners and of 1st and 4th petitioners, they submitted an application for swap transplantation. The authorisation committee, however, rejected both sets of applications holding that the petitioners do not come under the purview of ‘near relative’ as per the Act and the Kerala Guidelines.This prompted them to approach the High Court through advocates TP Sajid and Shifa Latheef..Justice Nagaresh stated that it was clear that the Act contemplates non-near relative organ transplantation and the condition is that the donor should have a special reason for giving authorisation for transplantation and prior approval should be obtained from the Authorisation Committee.Moreover, the Court found that Rule 7 of the Transplantation of Human Organs and Tissues Rules, 2014, provides strong and sufficient safeguards to ensure that commercial intention is not the motivation of a given proposal for organ transplantation and enables the authorisation committee to scrutinise the proposals in an effective manner."The prime purpose of the Act is facilitating transplantation of human organs for therapeutic purpose", the Court saidIt therefore held that swap transplantation can also be permitted between non-near relatives and directed the authorisation committee to consider the applications of the petitioners afresh.[Read Judgment]