Punjab and Haryana High Court: While deciding a writ petition, the bench of Vinod S. Bhardwaj, J., held that the definition of ‘near relative’ as provided in the Transplantation of Human Organs and Tissues Act, 1994, should not be interpreted to restrict any other donorout of love and affection and allowed the petitioners to swap their kidneys.


In the case at hand, two petitioners are suffering from various ailments of the kidneys and were advised to undergo the kidney transplantation. The donors are wife and mother-in-law of the petitioners respectively and have voluntarily and out of natural love and affection agreed to donate their kidneys to petitioners. After medical tests it was found out that the blood groups of Petitioner 1 matched with the wife of Petitioner 2 and blood group of Petitioner 2 matched with mother-in-law of the Petitioner 1. Considering the absence of matching blood groups within family of petitioners, they applied for “Swap Transplantation” under the Transplantation of Human Organs and Tissues Act, 1994 (“the Act, 1994”) read with Transplantation of Human Organs and Tissues Rules, 2014 (“Rules of 2014”). The Authorization Committee of hospital disapproved the case of the petitioners.

Submissions on behalf of the Respondent

The counsel of the respondent contented that as per the provisions of the Act,1994 as well as Rules, “Swap Transplantation” is permissible only from near relatives and the transplant of organs between unrelated persons cannot be allowed.

Analysis, Law and Decision

The Court noted that the objective of the Act, 1994 is to provide for the regulation of the human organs or tissues for therapeutic purposes and long object and reasons of the Act, 1994 show that the underlying legislative intent was to curb commercial dealings in human organs.

The Court observed that Section 9 of the Act, 1994 clearly shows that swapping is permissible with the approval of the Authorization Committee where the donors had agreed to make donation of their organs to the recipient, who is their ‘near relative’ but the same cannot be affected on account of biological incompatibility. Hence, the act of swapping is not a prohibited act under the Transplantation of Human Organs and Tissues Act, 1994 and the Rules of 2014 notified by the Government of India.

The Court said that loss of human life should not be permitted merely at the altar of technicalities. The donor of the Petitioner 1 is mother-in-law of the Petitioner 1 and it cannot be construed that the said donor has agreed to donate her kidney for commercial reasons. When the spouse is recognized as a relative within the definition of ‘near relative’ under Section 2(i) of the Act, 1994, the object of Section 9(3A) of the Act, 1994 should not be permitted to be defeated merely by adopting such rigid, dogmatic and stigmatic interpretation and not to include people who get related by matrimony and would have same love and affection.

The Court further stated that the social family bonds, the social fabric and family structure in the Indian Sub-Continent is also required to be kept in consideration and such relatives from the family of the spouse cannot be isolated as completely distant or wholly unrelated. The law recognized relationships mentioned in Section 2(i) as ‘near relative’ and did not intend to impose any condition that no person other than a near relative can be a donor, if all other parameters prescribed in Rule 7 of the Rules of 2014 are satisfied. A pragmatic approach is required to be taken by the Court which advances the object of the statute without promoting the mischief required to be curtailed.

The Court said that Article 21 will intervene and support justice in cases where loss of human life is irreparable and legislative intent is not prohibitive. While adverting to the doctrine of equity, it may in a technical sense be defined as a portion of natural justice, however, while exercising equity, the Courts have exercised a latitude in stretching it to cover cases not expressly dealt with by law. Thus, Equity empowers a Court to exercise its judicial discretion in furtherance to interests of justice and to do substantial justice amongst the contesting parties by taking stock of the totality of circumstances.

The Court held that the approval was denied by the Authorisation Committee only for a technical reason i.e., donor of the Petitioner 1 does not fall under the definition of ‘near relative’ as stipulated in Sub Section 2(i) of the Act, 1994. Also, there is no suggestion or reference that such a transaction is being executed between the willing donors or the willing recipients due to commercial transaction.

Hence, the Court allowed the petition and granted permission to the petitioners to swap their kidneys, subject to satisfaction of other regulatory requirements.

[Ajay Mittal v. Union of India, 2022 SCC OnLine P&H 3696, decided on 06-12-2022]

Advocates who appeared in this case:

Counsel for Petitioners:- Advocate Molly A. Lakhanpal;

Counsel for Respondents:- Advocate Satya Pal Jain, Advocate Sudhir Nar.

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