While pointing out that approval from the Authorization Committee is mandatory as far as an unrelated organ donor is concerned, the Kerala High Court held that concern about commercialization of organ donation can be reduced by removing the direct link between the person who offers to donate and the recipient.

Stating that police verification is conducted only to rule out that there is no commercialization of organ donation and transplantation, the High Court observed that when Police submit verification reports, mere mechanical orders shall not be passed by the authorization committee.

The High Court therefore directed the respondent to reconsider the matter and pass consequential orders granting authorization for renal transplantation, based on the application submitted by the petitioners, as expeditiously as possible.

A Single Judge Bench of Justice P. V. Kunhikrishnan further observed that “While considering an application submitted by the parties for permission for transplantation, the Authorization Committee’s duty is divine. The Authorization Committee must hold an enquiry independently. The committee should satisfy itself that the applicants have complied with all the requirements of the Transplantation of Human Organs and Tissues Act, 1994 and Rules made thereunder. If that subjective satisfaction is arrived, the Authorization Committee has to grant approval for the removal and transplantation of the human organs”.

Advocate N. A. Shafeek represented the petitioner, whereas Advocate Roshen D. Alexander D. represented the respondent.

The brief facts of the case were that the petitioner was suffering from advanced chronic kidney disease. He was advised by the doctors of VPS Lakeshore Hospital for urgent renal transplantation of the petitioner otherwise his life could not be saved. The second petitioner (donor) who is a family friend and a well-wisher of the petitioner, had come forward to donate his kidney. The Hospital authorities demanded a police verification certificate from the Deputy Superintendent of Police (DSP) even after the submission of the application. But, the District Level Authorization Committee for Transplantation of Human Organs (DACTHO) rejected the application. The DSP submitted a negative report to the DACTHO without conducting any enquiry. Later, the wife of the petitioner applied before the Chairman of Kerala Legal Service Authority (DLSA). On receipt of an application, the DLSA conducted an enquiry and prepared a report which was in the favour of the petitioner.

After considering the submission, the Bench noted that the police verification report of the Deputy Superintendent, and the report of the Inspector SHO need not be considered by the DACTHO.

On going through the statements of DLSA, the Bench found that there are no contradictions in their statements and they have given consistent statements regarding the relationship between the donor and the donee.

The Bench also stated that, although there were no documents presented to establish the employer-employee relationship between the donor and the brother of the donee, based on an affidavit filed by a donor, DLSA concluded that the donor has voluntarily agreed to donate without any external influence and there is no monetary transaction relating to it.

The Bench therefore concluded by observing that the report submitted by the Deputy Superintendent and the report of SHO are to be rejected and the DACTHO has to pass orders based on the report of the DLSA.

Cause Title: Biju Mathew v. Deputy Superintendent of Police and Ors. [Neutral Citation: 2023: KER: 51565]

Click here to read/download the Judgment


Kerala High CourtJustice P.V. Kunhikrishnan

Pankaj Bajpai