[Organ Donation] Humans Known To Save Others In Calamity, Altruism Of Distant Relative Can't Be Doubted Unless Definite Material To Contrary: Madras HC

Justice GR Swaminathan underlined that all religions proclaimed love and charity at highest value and not all human endeavor was underlined with selfish consideration. The court thus held that unless evidence was shown to the contrary, the committee should accept the statement made by the donor that the organ was being donated out of love and affection.

“All religions proclaim that love and charity are the highest virtues. Hundreds and thousands have given up their lives for larger and impersonal causes. It is not necessary that selfish consideration should underlie all human endeavour. Certain statements can be taken at their face value. That is why, I hold that the statement by a donor that he / she is making the donation out of love and affection for the recipient must be taken at its face value. Of course, this averment shall be rejected if there is definite material evidencing passing of consideration. Subject to there being no evidence that money or money's worth has changed hands, permission should be granted,” the court said.

The court was hearing pleas by people who were in the process of getting a kidney transplant but their applications were rejected by the Authorisation Committee as the donors were not “near relative”.

The court noted that The Transplantation of Human Orans and Tissues Act 1994 did not ban kidney donation in favor of a person who was not a near relative but only mandated that the transplantation be done after prior approval from the State Authorisation Committee. The court noted that often times, the Authorisation committee hesitated to give approval in such cases, prompting the patient and the donors to approach the court.

The court said that the Authorisation Committee often took into consideration the length of association between the donor and the recipient while assessing if the donation was out of love and affection. The court observed that this approach was not often sound as love and affection are intangible while time is measurable.

The court observed that too much burden could not be laid on the shoulders of the applicants to prove that there was no commercial dealings. The court added that unless there was definite material to show that there was financial dealings, permission ought not to be rejected or withheld. The court said that the committee need not always take a cynical view that a non-near relative will not donate out of altruistic consideration. The court underlined that altruism was present in humans, who, in times of danger and calamity were known to save others even at the cost of their own lives.

The court also suggested the State to form guidelines in this regard, in the absence of which, the issue will be left tl the arbitrary decision of the Authorisation Committee. The court added that in most cases, if the applicant was connected, his application was accepted while otherwise, the application would be rejected in a template manner.

Duty Of Recipient To Take Post-Operative Care Of The Donor

The court also highlighted that while the Act says that the donation should not be for commercial consideration, it does not say anything about the recipient taking care of the post-operative requirements of the donor.

The court said that the Authorisation Committee had an obligation to ensure that the needs of the donor are met. For this, the court suggested that the recipient take a medical insurance coverage in favour of the donor, and deposit a lump sum amount to the credit of the Authorisation Committee. The court added that the committee shall issue directions for crediting a fixed sum every month in the bank account of the donor for a period of three years and ensure benefit to the donor.

The court, thus, allowed all the petitioners to submit applications directly to the Authorisation Committee and directed them to scrutinize the same and pass final orders on merit.

Counsel for the Petitioner: Mr.M.Manivasagam, For M/s.Manivasagam Associates

Counsel for the respondent: Mr.K.Tippu Sulthan, Govt. Advocate, Ms.Elizabeth Seshadri, For M/s.Iyer & Thomas

Citation: 2024 LiveLaw (Mad) 227

Case Title: Sudha Mathesan v The Authorisation Committee (Transplantation)

Case No: W.P.Nos.13918, 13922, 13967 and 13969 of 2024