Swap Transplants Permissible Even If Donor-Recipients Not Near Relatives, Provided Special Reason Exist For Donation: Kerala High Court

In a significant judgement regarding organ transplantation laws in India, the Kerala High Court has ruled that swap transplants, with prior approval of the Authorisation Committee, are permissible even if each pair of donor- recipients are not near relatives, provided there exists a special reason like affection, attachment. etc. for the donor to donate their organ. 

Justice N. Nagaresh allowing a writ petition set aside the order of the Authorisation Committee for Transplantation of Human Organs observing: 

"It is therefore held that 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) (of Transplantation of Human Organs and Tissues Act) 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." 

Section 9(3) unambiguously permits any donor to authorise the removal of any of his human organs provided the above said two conditions are fulfilled. 

The Committee was thereby directed to reconsider the petitioners' applications and approve the same forthwith if they are otherwise eligible.

More importantly, the Court held that the provision under the head 'Swap Donation' in the Guidelines for Altruistic and Exchange Donation framed by the State will be inoperative to the extent it permits Swap Donations only between near relatives, as it goes against Section 9(3).

The Single Judge also laid down that Section 9(3A)(a) and (b) 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 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).  

This comes after four kidney patients approached the Court aggrieved by the Authorisation Committee rejecting their applications for swap donation on the ground that they were not near relatives.

The Authorisation Committee submitted that they declined the applications solely based on these provisions of the Act, 1994 and the Guidelines contained in the Government Order dated 15.02 2018. 

The Court noted that the prime purpose of the enactment was to facilitate the transplantation of human organs for therapeutic purposes.

It further observed that 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 the procedure for organ transplantation should therefore satisfy the test of reasonableness. 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." 

Advocates T.P. Sajid and Shifa Latheef for the petitioners and Senior Government Pleader Princy Xavier represented the respondent in the matter. 

Case Title: Moideenkutty & Ors v. District Level Authorisation Committee for Transplantation of Human Organs

Click Here To Read/Download The Order