‘Love and affection are intangible sentiments’ Madras HC allows organ donation for transplantation, between un-related individuals

Madras High Court

Madras High Court: While hearing writ petitions, seeking writ of mandamus to direct the hospital to pass orders for kidney transplantation, G. R. Swaminathan, J. has held that individuals willing to donate organs despite being “unrelated relative”, out of feelings of love and affection towards the recipient, should not be constrained. In absence of any aspect of commercial dealing or any other financial motive, the Authorizing Committee may authorise such applications and decide them on merits.


The first petitioners were admitted for renal failure in the hospital. Kidney transplantation being the only solution, the second petitioners came forward to donate their kidneys in favour of the corresponding first petitioners. However, the donors not being “near relatives” of the recipients, were required to take approval from the Authorisation Committee. The hospital, due to the complexities involved in undertaking donation for organ transplantation between unrelated relatives, was hesitant to forward the request for approval from the committee. The Court, noting the issues raised in the petitions to be identical in nature, merged them together for a common hearing.

Analysis and Decision

The Court perused Sections 2(f), (i) and (m) and Section 9(3) of the Transplantation of Human Organs and Tissues Act, 1994, and noted that the application for approval has to be jointly signed and submitted by the prospective donor and recipient directly before the Authorisation Committee.

The Court also noted that, as per Rule 5 of the Transplantation of Human Organs and Tissue Rules, 2014, the register medical practitioner shall, before removing any human organ or tissue from a living donor, satisfy himself on the following aspects:

(i) the donor has been explained of all possible side effects, hazards and complications.

(ii) The donor has given his authorisation in the relevant Form.

(iii) The physical and mental evaluation of the donor has been done; he or she is in proper state of health; he or she is not mentally challenged and is fit to donate the organ or tissue.

The Court said that the expression “informed consent” occurring in Form — 4 only means that the doctor has warned the donor about the consequences flowing out of his act of donation and is satisfied regarding the aforesaid aspects, and it cannot extend to anything beyond.

The Court said that the Authorisation Committees shall not insist that the application must be received from the hospital. The hospital cannot be treated as the proper channel for the purpose of submission of the application.

After perusing Form — 18 Certificate issued by the Authorisation Committee, the Court noted that permission will be granted, if the donation is out of love and affection and there is no financial transaction between recipient and donor and there is no pressure on the donor.

With respect to the enquiry that is to be made about the donor not being a “near relative” of the recipient, the court laid emphasis on Rule 7(3) which sets out the procedure of such an inquiry.

The Court took note of Sonia Ajit Vayklip v. Hospital Committee, Lilavati Hospital, 2012 SCC OnLine Bom 64, wherein it was held where the donor and the recipient are shown to be near relatives and the case does not fall under any of the three exceptions set out in Section 9(4) of the Act, the Authorisation Committee has no power to make further enquiry about the motive of donation because in such cases there would be no commercial element.

The Court noted that Section 9(3) of the Act envisages donation by reason of affection or attachment towards the recipient or for any other special reasons, and said that the burden would be on the applicant to establish the existence of special reasons. But where the applicants do not plead or project special reasons, the position will be different.

The Court said that in case of doubt, explanation can be sought from the applicants and there can also be verification done through the officials of the Government. Too much of burden cannot be laid on the shoulders of the applicants. Unless there is definite material to establish that there are financial dealings involving the parties, permission ought not to be withheld or rejected.

The Court suggested that the Government must come out with definite guidelines, otherwise, the issue will be left to the arbitrary discretion of the Authorisation Committee.

The Court further noted that parliament never intended to rule out donation by non-near relatives. Thus, it said that the parliamentary intent should not be frustrated by adopting a rigid approach, and one should not take a cynical view that a non-near relative will not donate out of altruistic considerations.

Thus, the Court held 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, subject to there being no evidence that money or money’s worth has changed hands.

The Court further said that it is the duty of the recipient to take care of the post operative requirements of the donor, as there is no bar in the Act for the recipient to cater to the post operative needs of the donor.

The Court thus, permitted petitioners to submit applications in Form —11 directly before the Authorisation Committee. Further, it directed the Authorisation Committee to scrutinize the applications within a period of four weeks from the date of submission of the applications.

[Sudha Mathesan v. K. G. Hospital, 2024 SCC OnLine Mad 1633, decided on 30-05-2024]

Advocates who appeared in this case :

For the Petitioners: Advocate. M. Manivasagam,For the Respondents: Govt. Advocate K. Tippu Sulthan, Advocate Elizabeth Seshadri

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