Authorization Committee Should Not Make Unsupported Suspicions Of Organ Donation Being 'Commercial' Transaction: Kerala High Court

The Kerala High Court has held that the role of the District Level Authorization Committee, which considers applications seeking permission for organ transplant, is 'divine' and that it must not raise technicalities in clearing such applications.

Single Bench of Justice P.V. Kunhikrishnan added that if subjective satisfaction is arrived at, the Authorization Committee has to grant approval for the removal and transplantation of the human organs.

"A man is in the death bed. He is hoping that he will get a life from another person. The Authorization Committee and Police shall always try to help the man in the death bed rather than to find out some technicalities and unsupported suspicions to conclude that there is commercial transaction or money transaction," it observed.

The remarks were made while hearing the plea of a kidney patient's wife, aggrieved by Authoization Committee's order rejecting her husband's application for organ transplant on the ground that it was solely based on financial interest, since the police could not find any specific relationship or friendship between the donor and the donee.

She approached the High Court stating that through the present plea, contending that report of Kerala Legal Service Authority (KELSA) was in their favour.

At the outset, Court observed that Police verification is conducted to rule out commercialization of organ donation and transplantation. However, it added that when Police submits verification reports, mere mechanical orders shall not be passed by the authorization committee. It said Authorization Committee ought to hold an independent enquiry and satisfy itself that all the requirements of the Transplantation of Human Organs and Tissues Act, 1994 and Rules thereunder are complied with.

Court said it's true petitioner could have preferred statutory appeal against the Authorization Committee's order however, "when life and death situation is in front of the 1st petitioner, this Court cannot shut its eyes and direct the petitioners to invoke the appellate remedy."

The Court perused the report submitted by the Secretary, District Legal Services Authority (DLSA), which revealed that the donor had worked in the recipient's brother's office for 5 years as a carpenter, and provides his services even at present, as and when called. The report had emphasized that the donor is a close family friend of the donee's family, and that there were no financial transactions or external influence involved. The said report had concluded that the the donor had voluntarily agreed for renal donation. 

The Court further noted that Police report which relied upon call details forwarded from the District Cyber Cell, to arrive at the finding that there was no close relationship between the petitioners, was not clear.

"Therefore, I am of the considered opinion that the report submitted by the Deputy Superintendent, Kodungallur and the report of the SHO, Kodungallur are to be rejected and the 2nd respondent (Authorization Committee) has to pass orders based on the report of the 5th respondent (Chairman, KELSA)," the Court held, while allowing the plea. 

It thereby directed the Authorization Committee to reconsider the matter and pass consequential orders granting authorization for renal transplantation, based on the application submitted by the petitioner, as expeditiously as possible, within ten days.

The petitioners were represented by Advocate N.A. Shafeek. Government Pleader B.S. Syamantak, and Advocates Roshen D. Alexander, Tina Alex Thomas, Harimohan, and Kochurani James appeared on behalf of the respondents. 

Case Title: Biju Mathew & Anr. v. Deputy Superintendent of Police, Kodungalloor & Ors. 

Citation: 2023 LiveLaw (Ker) 437

Case Number: WP(C) NO. 27178 OF 2023

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