Organ Donation | Merely Because Donor Hails From Disadvantaged Social Background, Can't Presume There's Exploitation: Kerala High Court

“I am guided to the impression that ‘DLAC’ appears to have taken the afore view being swayed by the social status of the donor, who appear to be from a disadvantaged one; and thus somehow has presumed that she appears to be subjected to exploitation by the 1^st petitioner. However, the impugned Ext.P12 report cannot add any force to this presumption or assumption - as the case may be; and am, therefore, of the firm view that ‘DLAC’ must reconsider the matter, based on the statements that have already been recorded, but adverting specifically to the “Certificate of Altruism”, which the petitioners are stated to have produced before them, from the competent Police Authority.”

The Court further held that the DLAC has to take a decision by adverting to the certificate of altruism submitted by the parties from competent police authorities and not based on their assumptions.

The order issued by DLAC stating that the donor (2^nd petitioner) is not offering the organ to the donee (1^st petitioner) for altruism was challenged before the High Court. The donor and donee approached the Court to get authorization from DLAC for organ donation.

The Counsel for the petitioner Advocate C R Suresh Kumar submitted before the Court that the donor was offering the organ only based on her love and affection towards the donee. It was also argued that the family members, including the husband and brother of the donor had made it clear before the DLAC that the organ was offered for altruism only.

On the other hand, Government Pleader Sunil Kumar Kuriakose submitted that there were inconsistencies in the statements of the donor and her family members. It was also argued that more care had to be taken since the donor was from a disadvantaged community to ensure that she was not exploited.

The Court stated that it cannot find inconsistencies in the statement of the donor and her family members as noted by DLCA. It noted that the donor was not legally wedded, but she was living together as husband and wife with a person called Manoj for the past sixteen years. The Court found that Manoj had been working as a driver for the donee since 2006 and he had helped them find a house as their families were against their relationship. It noted that Manoj was unable to donate his organ as he had met with an accident earlier. The Court found that the donor was offering her organ to the donee out of affection and altruism and this was evident from their statements.

“I cannot, therefore, fathom how the ‘DLAC’ could find that they could not ‘trace out any altruism on the part of the donor, especially a lady’ (sic).”, the Court stated. 

The Court found that the order of the DLAC rejecting authorization for transplantation does not even refer to the certificate of altruism submitted by the parties from the competent police authority

Accordingly, the Court allowed the writ petition and directed the DLAC to reconsider the matter by adverting to the certificate of altruism produced by the parties.

Citation: 2023 LiveLaw (Ker) 668

Case title: Ramachandran P v State of Kerala

Case number: WP(C) NO. 35672 OF 2023

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