Wife's Past Kidney Donation Can't Be Ground To Reject Husband's Kidney Donation Application: Kerala High Court
The Kerala High Court has held that an application for permission to donate a kidney cannot be rejected merely because the proposed donor's wife had donated a kidney several years earlier. [2026 LiveLaw (Ker) 476]
Justice Harisankar V. Menon was delivering the judgement in a petition challenging the orders passed by the District Level Authorisation Committee for Transplantation of Human Organs, Ernakulam, and the appellate authority, which had rejected an application submitted by a man seeking to donate one of his kidneys to a kidney patient undergoing treatment at Medical Trust Hospital, Ernakulam.
The main reason stated for rejecting the application was that the wife of the organ donor had donated her kidney a few years back.
The Court examined Section 9 of the Transplantation of Human Organs and Tissues Act, 1994 read with Rule 7(3) of the Transplantation of Human Organs and Tissues Rules, 2014, which prescribe the modalities to be followed while considering an application for permission to donate an organ.
The Court noted that the donation of a kidney by the wife a few years back cannot constitute a valid ground for rejection.
“Merely for the reason that the wife of the 2nd petitioner had donated a kidney a few years back, that cannot be a reason for rejection of an application filed under the Act,” the Court observed.
The Court stressed that an Authorisation Committee considering an organ donation application must act in accordance with the parameters prescribed under the Transplantation of Human Organs and Tissues Act, 1994 (THOTA) and the Rules framed thereunder.
Although the authorities had referred to Rule 7(3) of the Transplantation of Human Organs and Tissues Rules, 2014 the Court noted that the order did not identify either the involvement of a middleman or any commercial transaction as a reason for refusing permission. Instead, the principal reason was the previous donation made by the donor's wife.
“However, a reading of Ext.P12 shows that involvement of a middleman or any commercial transaction has not been pointed out as a reason for rejecting the application filed by the petitioners.” Court noted.
The authorities had also relied upon information from the Assistant Commissioner of Police, Guruvayoor, indicating that the proposed donor was an accused in a criminal case. There were also allegations concerning his consumption of alcohol.
The Court that, under the applicable Rule, an application could be rejected where the donor is addicted to drugs, and held that the consideration reflected in the impugned orders was not in tune with the statutory provisions.
The Court remitted the matter to the Authorisation Committee for fresh consideration in accordance with those precedents and the statutory framework.
The Court accordingly set aside both the original and appellate orders and directed the fourth respondent to reconsider the application.
Case Title: Fousiya and Anr. v State of Kerala and Ors.
Case No: WP(C) 10249/ 2026
Citation: 2026 LiveLaw (Ker) 476
Counsel for Petitioners: C.M. Mohammed Iquabal, Nashwa P.K, Anupama R. Nair, Thasneem A.P, Istinaf Abdullah, P. Abdul Nishad
Counsel for Respondents: Ajit Joy, Pooja Surendran (GP)