Calcutta High Court Allows Kidney Donation By Driver's Wife To Employer, Says Non-Relative Donation Permissible

The Calcutta High Court has set aside the decision of the State Level Authorization Committee refusing permission for a kidney transplant involving an unrelated donor, holding that the rejection was not in accordance with the statutory framework when there was no material indicating any commercial transaction or involvement of a middleman.

Justice Krishna Rao was hearing a petition filed by Ranjeet Kumar Ghosh, who sought permission for a woman, who was the wife of his driver, to donate one of her kidneys to him on humanitarian grounds.

The petitioner was suffering from chronic kidney disease and had been advised renal transplantation by doctors at Narayana Health, Mukundapur, Kolkata. According to the petitioner, none of his family members was found to be a suitable match, following which the proposed donor, whose blood group was compatible, voluntarily agreed to donate her kidney.

The petitioner and the proposed donor underwent medical tests and submitted the prescribed applications before the competent authorities. The hospital also requested the authorities to approve the transplantation as a life-saving measure.

The matter was subsequently referred for verification. A police inquiry conducted through the Deputy Commissioner of Police, Special Branch, Barrackpore Police Commissionerate, found that there was no unofficial dealing in cash or kind between the donor and recipient and that there was no middleman involved.

However, the District Level Verification Committee did not recommend the transplantation. The State authorities submitted that discrepancies had emerged regarding the proposed donor's husband's driving licence and his claim that he had been driving for the centre since 2021.

The driver's licence had been issued only on February 27, 2024, while the donor and her husband had stated that he had been driving since 2021-22. The authorities also noted that no documentary evidence had been produced to establish that he had been working as a driver through the centre since 2021.

The State Level Authorization Committee consequently refused permission, observing that the donor, her husband and the recipient's wife had failed to satisfactorily establish their relationship.

The High Court examined the statements recorded during the verification process.

The proposed donor stated that she had known the petitioner for around four years and had developed an acquaintance with him after her husband, who worked as a driver, drove the petitioner and his family. She said she was willing to donate her kidney because she loved the petitioner “very much” and had seen his deteriorating health.

The Court noted that the donor and recipient were not “near relatives” under the Transplantation of Human Organs and Tissues Act, 1994. However, it pointed out that Section 9(3) of the Act permitted transplantation involving a non-near-relative donor where the donation was motivated by affection, attachment or other special reasons, subject to prior approval of the Authorization Committee.

Referring to Rule 7(3) of the Transplantation of Human Organs and Tissues Rules, 2014, the Court noted that the Authorization Committee was required to examine, among other things, whether there was any commercial transaction, the link between the donor and recipient, the circumstances leading to the donation and whether any middleman or tout was involved.

The Court also relied on the Supreme Court's judgment in Kuldeep Singh & Anr. v. State of Tamil Nadu & Ors., which held that the purpose of the statutory framework was to prevent commercial dealings in human organs and that the Authorization Committee must ascertain the true intent behind the donor's willingness to donate.

Justice Rao noted that in the present case, the authorities' own reports found no financial transaction between the donor and recipient and no involvement of a middleman or tout.

The Court further took note of the donor's annual income of ₹1.48 lakh and her statement that she had known the petitioner for three to four years. It also noted that the statements of the donor, her husband and the recipient's wife indicated that the donor's husband had been driving the recipient to hospitals and that a relationship had developed between the families.

The Court held that Rule 17 of the 2014 Rules permitted the authorities to seek explanations and conduct verification where doubts arose. However, it cautioned that the applicants could not be subjected to an excessive burden of proof in the absence of definite material indicating financial dealings.

“Too much of burden cannot be laid on the shoulders of the applicants, unless there is definite material to establish that there are financial dealing involving the parties, permission ought not to be withheld or rejected,” the Court observed.

The Court further held that where a donor stated that the donation was being made out of love and affection, the assertion should not be doubted in the absence of credible reasons.

Finding that the reasons given by the Authorization Committee for refusing to recommend the transplant were not in accordance with the statutory provisions, the Court set aside and quashed the Committee's decision.

The State Level Authorization Committee was directed to reconsider the petitioner's request and take an appropriate decision within two weeks from the date of receipt of the order.

The writ petition was accordingly allowed.

Case: Ranjeet Kumar Ghosh Vs. State of West Bengal & Ors