Madras High Court: In a writ petition filed for directing the State to issue no objection certificate, and grant approval for kidney transplantation on priority basis, N. Seshasayee, J. has said that as per Section 9(3) of the Transplantation Of Human Organs and Tissues Act, 1994 (‘THOT Act, 1994’) and Rules 14 and 19 of the Transplantation of Human Organs and Tissue Rules , 2014 (‘THOT Rules, 2014’) transplantation has been permitted from non-related donors. Further, it gave the following directions:
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The petitioner and his donor were directed to present themselves before the Authorisation Committee for Approval of Cases for Transplantation at Coimbatore within one week;
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The Tahsildar was directed to conduct an inquiry in terms of Rule 14 of the THOT Rules, 2014 and to submit a report to the Authorisation Committee within one week thereafter;
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The Authorisation Committee was directed to proceed to examine the case of the petitioner and his donor in line with the parameters prescribed in Rule 7(3) of THOT Rules, 2014, and pass orders either approving the application in terms of Section 9(5) and Rule 19 of the Rules or rejecting the same under Section 9(6);
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In case the Authorisation Committee grants approval under Section 9(5), it was directed to forward the same to the Authorisation Committee/Hospital Committee at the Lakeshore Hospital, Cochin to enable them to take appropriate steps to complete the transplant at the earliest;
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In case the Authorisation Committee refuses to grant approval under Section 9(6) of the Act, it was left open to the petitioner to avail the remedy of an appeal under Section 17 of the Act.
The petitioner, a doctor by profession, was diagnosed with chronic kidney disease (CKD) in June 2022 and was put on dialysis. It has been advised by a nephrologist to undergo a kidney transplant at the earliest. His attempts to have his wife and child as donors failed. Attempts made to find a donor from his relatives also failed on account of medical impediments. The petitioner contended that one well-wisher offered to donate a kidney, out of “love and affection”. Thereafter, the petitioner approached several multi-specialty hospitals in Tamil Nadu, but these hospitals did not entertain the idea of a non-relative as a donor. Thus, the petitioner approached Lakeshore hospital at Cochin in Kerala. The doctors on cross matching the various parameters required, found that the donor’s kidney is suitable for transplantation. The documentation process was completed, except for a NOC under Section 9(4) of the Transplantation of Human Organs and Tissues Act, 1994.
The Court noted that a proposal was sent to the Authorization Committee for its approval and NOC. The Authorization Committee is stated to have sent a communication to the Lakeshore Hospital that an NOC is not necessary. The hospital authorities sent this communication to the Authorization Committee in the State of Kerala who, however, reiterated the requirement of a NOC before the surgery.
The Court said that this is a bureaucratic reluctance, familiar in our system, that germinates out of administrative apprehensions. A doctor, who may have helped save many lives, now finds himself in a state of helplessness to save his own life. Hospitals in Tamil Nadu appears to have pinned themselves to their committed reluctance to entertain a non-relative for an organ donor, when the Act does not insist that an organ donor should be a relative. This attitude is worrisome, as it has the potential to undermine the objectives behind the Act and to defeat its purpose.
The Court said that the Transplantation of Human Organs and Tissues Act, 1994 was enacted in response to the demand from various national bodies, medical and social experts in the backdrop of infiltration of several rackets and unethical practices in dealing with human organs, particularly kidneys. As public health is a State subject under Entry 6 of List II of Schedule VII of the Constitution, Parliament had no power to enact a comprehensive law on the subject for the country. In 1994, the States of Maharashtra, Himachal Pradesh and Goa passed a resolution under Article 252(1) of the Constitution authorizing Parliament for making a law on transplantation of human organs. In response, Parliament enacted the Transplantation of Human Organs Act, 1994, (‘Act’) which has since been rechristened the Transplantation of Human Organs and Tissues Act, 1994. The State of Tamil Nadu passed the requisite resolution under Article 252 of the Constitution adopting the unamended Act in this State.
Further, the Court took note of Section 9 of the Act and said that it imposed restrictions on the removal and transplantation of human organs. Section 9(1) stipulates no human organ removed from the body of a donor before his death shall be transplanted into a recipient, unless the donor is a near relative of the recipient except in a case falling under sub-Section 3. Section 9(3) deals with donors who are not near relatives of the recipient of the organ.
The Court took note of Rule 6A of the Transplantation of Human Organs Rules, 1995 (amended in 2008), which contemplates the constitution of the Authorisation Committees at the State Level, with additional Authorisation Committees functioning at the Hospital/District Level. The Court said that in a case where the donor, the recipient and the place of transplant are in different States, an NOC from the respective domicile State Government should be produced as mandated by Rule 6- B.
The Court noted that 2008 Rules were repealed and replaced by the THOT Rules, 2014 with effect from 27-03-2014. Though the Act was amended in 2011, and the 2008 Rules were superseded by the 2014 Rules, neither the 2011 amendment nor the 2014 Rules were enforced in Tamil Nadu till 2020, since the State had not adopted the same in terms of a resolution under Article 252(1) of the Constitution.
The Court also said that the requirement of a NOC, which was incumbent under Rule 6-B of the 2008 Rules is no longer a requirement under the 2014 Rules. In fact, the requirement of a NOC is seen only in Form 21 which requires an NOC from a Senior Embassy Official in a case under Rule 20(a) of the 2014 Rules where the donor or recipient are foreigners.
The Court referred to Kuldeep Singh v. State of T.N., (2005) 11 SCC 122, wherein it was held that the donor and the recipient were from the State of Punjab, it is the Authorisation Committee of that State which can issue approval for transplant, which can then be transmitted to the State of Tamil Nadu for necessary action.
The Court noted that in the case at hand, the donor and recipient are from Tamil Nadu and the operation is to be performed in Kerala. Further, it said that Rule 14 of the 2014 Rules embodies the principle laid down in Kuldeep Singh (supra) which requires the Appropriate Committee of the domicile of the donor/recipient to inform the police in case any organ-trafficking is suspected. Further, the Court noted that the Appropriate authority is notified under Section 13 of the Act and that it should not be confused with the Authorisation Committee under the Rules. Thus, it held that the Authorisation Committee in the State of Tamil Nadu must examine the case of the petitioner with reference to the parameters under Rule 7(3) and decide whether approval can be granted in terms of Rule 19 of the 2014 Rules.
The Court said that the transplants from non-relative donors are contemplated under Section 9(3) of the Act, and Rules 14 and 19 of the 2014 prescribed the procedures. Thus, refusal by hospitals in the State of Tamil Nadu to perform transplants concerning unrelated donors would be plainly illegal. Further, in the State of Tamil Nadu guidelines have been laid down for transplants from non-relative donors in the Government Order dated 06-06-2008.
[Dr. J. Kaja Moinudeen v Authorization Committee, 2023 SCC OnLine Mad 6339, Order dated 09-10-2023]
Advocates who appeared in this case :
For Petitioner: Advocate S. Haja Mohideen Gisthi
For Respondents: Special Government Pleader C. Kathiravan
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