The Delhi High Court, on Friday, opined that Courts need to step in as parens patraie in cases where organ donors from economically weaker sections of the society succumb to monetary gains at the cost of their health.
"Being deprived of opportunities, money does play an important role in their lives. This fits in with Maslow’s hierarchy of needs theory, which is often portrayed as a pyramid. At the base of this pyramid are the need for physiological well being and economic security, while self-actualization is at the top.
Such donors succumb to promise of monetary gains at the cost of their health. The Court, in such cases, needs to step-in and act as parens patraie," Justice Rajiv Shakdher observed.
The Court was hearing Petitions challenging orders passed by the Authorization Committee and the Appellate authorities formed under the provisions of the Transplantation of Human Organs and Tissues Act, 1994. Through the impugned orders, the authorities had denied permission for organ transplantation to the Petitioners, who were the donor and the donee.
The donee in the case at hand had an End Stage Renal Disease (ESRD) and wished to receive a kidney from a woman who she claimed to have known for over a decade. The authorities, however, denied permission, noting disparities in the claims made by the parties about them having been friends for a long period of time. The authorities had further taken note of the age gap of 13 years between the two women and also the income gap between the families to conclude that the donor might have been pressurized into agreeing to give her kidney to the donee.
At the outset, the Court noted that the onus to establish that an offer to donate an organ was made on account of affection and attachment to the donee is on the applicant.
It then pondered upon the deliberation on the interest of the donor who belongs to an economically weaker section of the society and emphasized on the importance of looking into the "surrounding circumstances and real-life experiences" while deciding whether money exchanged hands in such cases.
The Court further opined that the report of the Senior Superintendent of Police is just one of the factors to be taken into account by the authorities, in light of the other surrounding circumstances, observing, "... if the Authorization Committee and the Appellate Authority were to simply rely on the report of the Senior Superintendent of Police or the report of the District Magistrate, they would be failing in their duty to discharge the obligation placed upon them by the statute. Such an interpretation would be, in my opinion, in the teeth of provisions of Section 3 read with Section 9(3) of the 1994 Act."
However, in the case at hand, the Court noted that there were several loose ends that needed to be tied together by the Appellate Authority. Therefore, setting aside the impugned orders and remanding back the matter to it for fresh consideration, it directed, "The Appellate Authority would hear the matter en banc i.e. while sitting together as a body. Thereafter, the Appellate Authority would pass a speaking order and not simply rely on the recommendation of the Appellate Committee. The evidence/ material placed before the Authorization Committee will also be analyzed and discussed by the Appellate Authority while passing its order."