Kerala HC Directs State To Notify Hospital Based Authorization Committees For Expeditious Decision On Organ Donation Applications

The Court further stated that the State Government has to ensure that qualified persons must be included in the Authorization Committees.

Justice V G Arun was considering a writ petition filed by a recipient and an organ donor whose joint application submitted under Section 9 of the Transplantation of Human Organs and Tissues Act, 2012 was rejected by the District level Authorization Committee, due to suspicions of commercial dealings, as they were strangers and not close relatives.

In the facts of the case, the first petitioner is an auto-rickshaw driver who is crowdfunding for undergoing renal transplantation surgery. The second petitioner has volunteered to donate his organ for altruism without any commercial benefits. The District Authorization Committee rejected the application for organ transplantation suspecting commercial dealing since petitioners were strangers and not near relatives.

The Court stated that the Transplantation of Human Organs and Tissues Act, 2012 aims to prohibit commercial dealings in organ donation, facilitate the removal of organs from deceased and brain-dead patients and for altruistic organ donation by living individuals.

It noted that Section 9 pertains to the restrictions on the removal and transplantation of human organs. It gives power to the Authorization Committee to conduct an inquiry when the recipient and donor are not near relatives and the donation was made out of love and affection. In these cases, the Court stated the Authorization Committee shall conduct an inquiry as per the Transplantation of Human Organs and Tissues Rules, 2014.

The Court further stated that the burden of satisfying the Authorization Committee that organ donation was out of love and affection and not for commercial benefits is upon the applicants.

Relying upon the Apex Court decision in Kuldeep Singh v. State of Tamil Nadu (2005), the Court stated that the Authorization Committee must evaluate each application based on relevant materials, circumstances and factors, avoiding any assumptions, conjectures or personal opinions from its members.

The Court went on to state that there were three types of Authorization Committees as per Rule 11, Hospital Based Authorisation Committee, State level Authorisation Committee and Additional Authorisation Committee at the district level. The Court stated that approval from district and state level committees have to be taken when there is a lack of hospital based Authorisation Committee. It is also mandatory for hospitals with twenty or more plants in a year to have hospital based Authorisation Committee.

The Court stated that the approval of applications in Kerala were done by the district level Authorisation Committee since the State government has not notified the constitution of hospital based Authorisation Committees.

Court said, “Surprisingly, in Kerala, all applications for approval under Section 9(5) are being considered by the District Level Authorisation Committee (DLAC), since Hospital Based Committees, as mandated by Rule 11(4), are yet to be notified. This is resulting in the process of approval being delayed indefinitely.”

The Court further stated that the responsibility of constituting the Authorization Committee, by nominating members, lies with the State government as per Section 9 of the Act.

“Yet another aspect of concern is the failure to include persons with experience and knowledge in different fields in the Authorisation Committees, as envisaged in Rules 12 and 13 above. Inclusion of such members is intended to bring about a balance in the committee. Therefore, it is imperative for the State Government to constitute Hospital Based Committees and ensure induction of the members in accordance with Rules 12 and 13. The needful in this regard ought to be done without further delay, so that the laudable objectives of the Act are not defeated”, said the Court.

In the facts of the case, the Court stated that it is difficult to give proof to show that the donor is willing to donate his organ out of love and affection. The Court further noted that the Authorisation Committee has not considered relevant facts that the transplantation was done through crowd funding and that the recipient is an auto rickshaw driver.

“As rightly contended by the counsel for the petitioners, it is extremely difficult, rather impossible, to provide proof of feelings like love and affection. Absence of photographs featuring the donor and recipient cannot also be the reason for negativing the donor's version that he had volunteered to donate his organ out of love and affection. The communication of the police stating that commercial elements are suspected has to be tested against the admitted fact that the recipient is an auto-rickshaw driver and the transplantation is being done by collecting funds from the public.”

As such, the Court set aside the order of the Authorization Committee and directed them to pass a reasoned order.

Counsel for Petitioners: Advocates C Achacko, C M Charisma, Babu V P

Counsel for Respondents: Senior Government Pleader Deepa Narayanan, Advocate Thomas J Anakkallunkal

Case Number: WP(C) NO. 33655 OF 2024

Case Title: Jillet K T & Another v State of Kerala & Others

Citation: 2024 LiveLaw (Ker) 641