Refusal By Hospitals To Perform Organ Transplants From Unrelated Donors Would Be Plainly Illegal: Madras High Court
While pointing out that transplants from non-relative donors are contemplated under Section 9(3) of the Transplantation of Human Organs and Tissues Act, 1994, and Rules 14 and 19 of the Human Organs and Tissues Rules, 2014 prescribed the procedures too, the Madras High Court held that refusal by hospitals in the State of Tamil Nadu to perform transplants concerning unrelated donors would be plainly illegal.
The High Court also elucidated that proper legal education on the subject the physicians and hospitals is required as the apprehensions and reluctance of the hospitals here to entertain organ transplantation between non-relatives is more due to inadequate awareness of the law on the topic.
The High Court held so while considering a petition seeking issuance of mandamus to the respondents to issue a No Objection Certificate, considering the petitioner's pathetic case and grant approval for kidney transplantation on priority basis and save his life.
Finding that the donor and the recipient are from the State of Tamil Nadu, and applying the decision in Kuldeep Singh v. State of T.N [(2005) 11 SCC 122], a Single Judge Bench of Justice N. Seshasayee observed that “it is the Authorization Committee in the State of Tamil Nadu which must examine the case of the petitioner with reference to the parameters under Rule 7(3) and decide whether approval can be granted in terms of Rule 19 of the 2014 Rules”.
Advocate S. Haja Mohideen Gisthi appeared for the Petitioner whereas Advocate C. Kathiravan appeared for the Respondent.
The brief facts of the case were that the petitioner who is a doctor by profession, was diagnosed with chronic kidney disease (CKD) and was put on dialysis. It has been advised by a nephrologist to undergo a kidney transplant at the earliest. His attempts to have his wife, child, and relatives as a donor had failed. Finally, one of his well-wisher offered to donate a kidney but no multi-specialty hospital entertained the idea of a non-relative as a donor. The petitioner approached Lakeshore Hospital and on cross-matching the various parameters required, the doctors found the non-relative kidney suitable for transplantation. The documentation process too was Completed except for a NOC under Sec.9(4) of the Transplantation of Human Organs and Tissues Act, 1994. It appears that a proposal was sent to the 1st respondent for its approval and NOC. The 1st respondent is stated to have sent a communication to the Lakeshore Hospital that an NOC is not necessary. It appears that the hospital authorities sent this communication to the Authorization Committee in the State of Kerala who, however, reiterated the requirement of a NOC before the surgery. Hence, the Petitioner has approached the court, partly frustrated and partly with hope, for the relief sought.
After considering the submission, the Bench noted that the petition presents a spectre of what this Court may term it as bureaucratic reluctance familiar in our system that germinates out of administrative apprehensions.
The Bench also pointed that the Transplantation of Human Organs and Tissues Act, 1994 was enacted in response to the demand from various national bodies, and medical and social experts in the backdrop of the infiltration of several rackets and unethical practices in dealing with human organs, particularly kidneys.
A plain reading of Section 9(1) shows that no human organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient except in a case falling under sub-section 3, added the Bench.
The Bench further highlighted the fact under the light of Section 9(3) that “If any donor authorizes the removal of any of his human organs before his death under sub-section (1) of section 3 for transplantation into the body of such recipient, not being a near relative, as is specified by the donor because of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the Authorization Committee.”
The Bench also pointed out Rule 6 of 1995 which indicated that “The donor and the recipient shall make jointly an application to approve removal and transplantation of a human organ, to the Authorization Committee as specified in Form 10.”
The Bench also highlighted Rule 6(B) of 1995 that “The State level committees shall be formed to provide approval on no objection certificate to the respective donor and recipient to establish the legal and residential status as a domicile state. It is mandatory that if the donor, recipient, and place of transplantation are from different states, then the approval or 'no objection certificate' from the respective domicile State Government should be necessary. The institution where the transplant is to be undertaken in such case the approval of Authorization Committee is mandatory.”
The Bench at the same time clarified that the requirement of a NOC, which was incumbent under Rule 6-B of the 2008 Rules is no longer a requirement under the 2014 Rules. The requirement of an NOC is seen only in Form 21 which requires an NOC from a Senior Embassy Official in a case under Rule 20(a) of the 2014 Rules where the donor or recipient are foreigners.
Accordingly, the High Court directed the Authorization Committee to either approve the application in terms of Section 9(5) and Rule 19 of the Rules or reject the same under Section 9(6).
Cause Title: Dr. J. Kaja Moinudeen v. The Authorization Committee and Ors.
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