Nothing Like 'Criminal Kidney': Kerala High Court Says Criminal Antecedents Of Donor Irrelevant For Organ Donation

The Kerala High Court recently reiterated that the criminal antecedents of a donor are not criteria to be considered by the authorization committee for transplantation of human organs.

Justice P.V. Kunhikrishnan observed,

"There is no organ in the human body like a criminal kidney or criminal liver or criminal heart! There is no difference between the organ of a person without a criminal antecedent and the organ of a person who has no criminal antecedents. Human blood is passing through all of us."

The development ensued in a case where a kidney patient approached the Court challenging the decision of a District Level Authorization Committee for transplantation of Human Organs, rejecting his application of an organ donor on the ground that the donor is involved in multiple criminal offences. 

"If this stand of the respondent is allowed, I apprehend that the respondent will reject applications if the donor is a murderer, thief, rapist, or involved in minor criminal offences. I hope one day they do not reject applications if the donor is a Hindu, Christian, Muslim, Sikh, or person in a lower caste after comparing with the religion and caste of the recipient," the Court said.

The Petitioner had contended that such an order was unsustainable for the reason that there is no prohibition in law on organ donation by a criminal. He admitted that although the earlier Rule which was in force from 1994 mandated that a donor should not have any criminal antecedents, the same was substituted by the 2014 Rules. Therefore, such a stipulation is not there in the new Rules.

The Government Pleader agreed with the petitioner in the fact that there is no provision in the Act or Rules prohibiting the donation of organs by a person involved in criminal offences. However, the Government pleader submitted that there is an alternative remedy to the petitioners through which they can file an appeal under Section 17 of the Act.

The Court perused the entire provisions in the Transplantation of Human Organs and Tissues Act and the Transplantation of Human Organs and Tissues Rules, 2014 and found no provision to support the stand of the authorization committee.

Similarly, it was found that the intention of the Legislature was only to prevent commercial dealings in human organs and tissues. Section 9(6) says that the permission can be rejected only if the requirements of the Acts and the Rules made thereunder are not complied with.

Accordingly, the Court observed that nowhere in the Rules or the Act does it prohibit a person involved in criminal offences to donate his organs to a willing recipient. 

It stated that there was no logic to the finding of the committee for rejecting the application of a friend who comes forward to donate his kidney to a man on his deathbed. 

"...if the reasoning of the authority is accepted, the only conclusion that is possible about such reasoning of the Authorisation Committee is that the committee believes that the criminal behaviour of the donor will percolate to the person who accepts the organs! What sort of reasoning is this? No person with common sense can agree with the same. These are flimsy reasons."  

Reliance was also placed on the decision of Shoukath Ali Pullikuyil v. District Level Authorization Committee (2017(2) KLT 1062) to conclude that the criminal antecedents of a donor are not criteria to be considered by the authorization committee.

Accordingly, the Court allowed the petition and thereby set aside the impugned decision. The Authorization Committee was further directed to reconsider the application of the petitioner. 

Case Title: Radhakrishna Pillai v. District Level Authorization Committee for Transplantation of Human Organs

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