Kerala High Court
M.C.Abdul Rahman vs State Of Kerala on 24 March, 2017
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 25TH DAY OF MAY 2017/4TH JYAISHTA, 1939
WP(C).No. 15822 of 2017 (C)
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PETITIONER(S):
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1. M.C.ABDUL RAHMAN,
MARIYUMMA MANZIL, VADAKKUMBAD (P.O.),
RAMANTHALI, KANNUR.
2. PRASAD,
KARAKUNNEL HOUSE, ARUVITHURA (P.O.),
ERATHUPETTA, KOTTAYAM.
BY ADVS.SRI.PHIJO PRADEESH PHILIP
SRI.JIKKU SEBAN GEORGE
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. SECRETARY TO GOVERNMENT,
DEPARTMENT OF HUMAN AFFAIRS,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3. THE DISTRICT LEVEL AUTHORIZATION COMMITTEE,
GOVERNMENT MEDICAL COLLEGE,
THRISSUR - 680 596,
REPRESENTED BY ITS PRINCIPAL/CHAIRMAN.
4. THE STATE LEVEL AUTHORIZATION COMMITTEE,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001,
REPRESENTED BY ITS CHAIRMAN.
5. THE OFFICER IN CHARGE,
MEDICAL TRUST HOSPITAL,
M.G. ROAD, ERNAKULAM - 682 016.
BY GOVERNMENT PLEADER SRI.S.KANNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25-05-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
msv/
WP(C).No. 15822 of 2017 (C)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE APPLICATION
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 24.03.2017 OF THE
DISTRICT LEVEL AUTHORIZATION COMMITTEE
EXHIBIT P3 TRUE COPY OF THE ORDER DATED ..... OF THE STATE LEVEL
AUTHORIZATION COMMITTEE
RESPONDENT(S)' EXHIBITS:
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NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
P.B.SURESH KUMAR, J.
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W.P.(C) No.15822 of 2017
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Dated 25th May, 2017.
J U D G M E N T
This matter arises under the Transplantation of Human Organs and Tissues Act, 1994 ('the Act').
2. The first petitioner is suffering from chronic renal failure and is undergoing dialysis. It is stated by the petitioners that the Nephrologists who are treating the first petitioner have advised him that kidney transplantation is the only option to save his life. The case of the petitioners is that the second petitioner who is a friend of the first petitioner has though offered to donate one of his kidneys to the first petitioner, the Authorisation Committee under the Act declined approval for the removal of the organ of the second petitioner. Ext.P2 is the order passed by the Authorisation Committee in this connection. The petitioners though took up the matter in WPC No.15822 of 2017 2 appeal before the State Government, Ext.P2 order has been confirmed in the appeal. Ext.P3 is the order passed by the State Government in this connection. Exts.P2 and P3 orders are under challenge in this writ petition.
3. Heard the learned counsel for the petitioners as also the learned Government Pleader.
4. Sub-section (3) of Section 9 of the Act provides that if a person authorises removal of any of his human organs before his death for transplantation into the body of another, who is not a near relative, by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed or transplanted without the prior approval of the Authorisation Committee. Section 2(i) of the Act defines 'near relative'. Only the spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson and granddaughter would come within the said definition of 'near relative'. The second petitioner is admittedly not a near relative of the first petitioner going by the definition of 'near relative' contained in the Act. As such, the approval of WPC No.15822 of 2017 3 the Authorisation Committee is required in the case of the petitioners for transplantation. Ext.P2 order indicates that the approval sought by the petitioners has been declined on two grounds. The first ground is that there is gross disparity between the financial status of the donor and the recipient and the second ground is that the donor and the recipient's daughter could not explain satisfactorily the link between them which led to the offer being made. In support of the second ground, it is stated in Ext.P2 order that the claim of the donor that he was working as an employee in the recipient's aluminium fabrication workshop has not been established by them and the certificate issued by the President of the Panchayat to prove the said relationship of parties runs counter to the case of the petitioners. Ext.P2 order passed by the Authorisation Committee does not give any additional reason. As such, the question is whether the reasons aforesaid are sufficient to decline the approval sought by the petitioners.
5. The object of the Act is to regulate the removal of organs from living as well as deceased persons and the WPC No.15822 of 2017 4 transplantation of such organs to prohibit commercial dealings in human organs. A legislation of this nature was necessitated on account of the exploitation of humans for financial benefits in the dealings of human organs. In order to ensure the object of the Act, sub-rule (3) of Rule 7 of the Transplantation of Human Organs and Tissues Rules, 2014 ('the Rules') makes it obligatory for the Authorisation Committee to ensure that there is no commercial transaction between the recipient and the donor and that no payment has been made or promised to be made to the donor or to any other person by the recipient. The said sub-rule also makes it obligatory for the Authorisation Committee to ensure that there is a satisfactory explanation for the link between the parties and the circumstances which led to the offer of the organ. The aforesaid sub-rule also empowers the Authorisation Committee to take into account the financial status of the parties to ascertain whether there is commercial dealings between them. Sub-rule (3) of Rule 7 of the Rules reads thus :
"(3) When the proposed donor and the recipient are not WPC No.15822 of 2017 5 near relatives, the Authorisation Committee shall,--
(i) evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person;
(ii) prepare an explanation of the link between them and the circumstances which led to the offer being made;
(iii) examine the reasons why the donor wishes to donate;
(iv) examine the documentary evidence of the link, e.g. Proof that they have lived together, etc.;
(v) examine old photographs showing the donor and the recipient together;
(vi) evaluate that there is no middleman or tout involved;
(vii) evaluate that financial status of the donor and the recipient by asking them to give appropriate evidence of their vocation and income for the previous three financial years and any gross disparity between the status of the two must be evaluated in the backdrop of the objective of preventing commercial dealing;
(viii) ensure that the donor is not a drug addict;
(ix) ensure that the near relative or if near relative is not available, any adult person related to donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness about his or her intention to donate an organ or tissue, the authenticity of the link between the donor and the recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of."
WPC No.15822 of 2017 6
It is common knowledge that a large number of patients are waiting to find out an appropriate donor for organ transplantation to save their lives and only a very few are fortunate to find matching donors from among their near relatives. Going by the scheme of the Act and the Rules, transplantation outside near relatives is permissible only by reason of affection or attachment towards the recipient or for any other special reasons. As far as the present case is concerned, the case of the petitioners is that the second petitioner proposes to donate his organ to the first petitioner by reason of his affection towards the first petitioner. The Authorisation Committee is required to affirm cases of this nature. The question whether the consent given by a person to donate his organ to another is by reason of his affection towards him can be ascertained only from the surrounding circumstances. It is relevant in this context to note that the statute does not prohibit transplantation. It only regulates transplantation with a view to avoid exploitation in the dealings of organs for financial benefits. As such, according to me, if WPC No.15822 of 2017 7 circumstances indicate a possible relationship for one person to donate his organ to save the life of another, the approval sought has to be granted.
6. As noted above, one of the reasons stated by the Authorisation Committee in the instant case to decline the approval sought by the petitioners is that there is gross disparity between the financial status of the donor and recipient. True, financial status of the parties is certainly a factor to be gone into by the Authorisation Committee to ascertain whether the donation of the organ proposed is voluntary and also to ascertain whether there is any financial dealings in the transaction. But, that does not mean that transplantation cannot be permitted, if there is disparity in the financial status of the donor and recipient. Voluntary donation of an organ by a person is a self deprivation of the highest order and it is inhuman to hold that such sacrifices would be made by people only based on monetary considerations.
7. The other reason stated by the Authorisation Committee to decline the approval sought by the petitioners, as WPC No.15822 of 2017 8 noted above, is that the petitioners have not satisfactorily explained the link between them which led to the offer. In order to support the said conclusion, the Authorisation Committee has stated that materials on record are not sufficient to hold that the second petitioner was working in the aluminium fabrication workshop of the first petitioner and that the certificate of the President of the panchayat produced by the parties run counter to the said case set up by the parties. Since the issue is one which has a direct impact on the life of a person, this Court felt it necessary to interact with the second petitioner. consequently, this Court directed the second petitioner to be present in Court. Accordingly, the second petitioner is present in Court today. I have examined him thoroughly. It is stated by him that though be belongs to Erattupetta, his parents were settled at Kanhangad and he was residing with them at Kanhangad since 1995. It is also stated by him that he shifted back to Erattupetta only in the year 2009. It is further stated by him that his mother and younger brother are still residing at Kanhangad and that his sister is settled at Neeleswaram. The WPC No.15822 of 2017 9 ration card of the family of the petitioner which is part of the records indicates that the same was issued by the Rationing Authority, Hosdurg and the name of the second petitioner is included therein. As directed by this Court, an affidavit is also filed by the second petitioner indicating the aforesaid facts. The specific case of the second petitioner is that the first petitioner was conducting an aluminium fabrication workshop at Kannur and that the second petitioner was an employee in the said workshop for some time. It is their case that it is by reason of the affection which the second petitioner developed towards the first petitioner on account of their acquaintance as employer and employee that the second petitioner has offered to donate his organ to save the life of the first petitioner. From the aforesaid materials, I am of the view that the case of the second petitioner that he had worked with the first petitioner in his aluminium fabrication workshop, cannot be said to be false as the first petitioner belongs to a place near to Kanhangad. If the said case set up by the petitioners is correct, the only remaining question is as to whether there exists a relationship WPC No.15822 of 2017 10 between them sufficient for the second petitioner to donate one of his organs to the first petitioner. It is very difficult to make inferences about the depth of the relationships between persons from surrounding circumstances. Further, according to me, such an enquiry is not contemplated also for the purpose of the statute, for, the statute does not prohibit transplantation. As noted above, the scheme of the statute is that if circumstances indicate a possible relationship for one person to donate his organ to save the life of another, the approval sought has to be granted. True, the President of the panchayat in his certificate stated that the second petitioner is still working with the first petitioner. It is not a correct statement. The petitioners do not have such a case. On an evaluation of the entire materials on record, I am of the view that the petitioners are entitled to the relief sought in the writ petition and it may not be proper to decline the relief sought by the petitioners by reason of the incorrect statement in the certificate issued by the President of the Panchayat.
8. For the aforesaid reasons, the writ petition is WPC No.15822 of 2017 11 allowed, Exts.P2 and P3 orders are quashed and the Authorisation Committee is directed to pass orders approving the transplantation requested for by the petitioners. Orders in this connection shall be passed as expeditiously as possible.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs (true copy)