Permission To Donate Human Organs Cannot Be Rejected Without Cogent Evidence Establishing Commercial Element: Kerala High Court

The Kerala High Court on Monday (January 6) held that permission to donate human organs cannot be rejected unless there is cogent material to establish a commercial element.In doing so the court added that if the donor claims that the donation is made purely out of altruism, their statement must be accepted if there is no credible evidence to prove the contrary.Justice C.S. Dias made these observations while granting relief to Uvais Muhammed, a 20-year-old boy who was suffering from chronic kidney disease and sought a renal transplant. However, the Authorization Committee, provided under the Transplantation of Human Organs and Tissues Act, 1994, denied Uvais's plea."We also have to visualise a crucial aspect: the petitioners can only, on solemn oath, state that there is no commercial element involved. If the Authorisation Committee had harboured doubt regarding the veracity of the petitioners' statement, they should have sought clarifications from the petitioners or initiated an inquiry through their machinery. In any given case, the Authorisation Committee cannot impose a reverse burden upon the petitioners to disprove a negative aspect. Permission for donation cannot be rejected unless there is cogent material to establish a commercial element. When the donor asserts that the donation is made purely out of altruism, in the absence of any credible material to the contrary, the statement has to be accepted. We need to have an optimistic perspective that non-near relatives exist who are genuinely willing to sacrifice their organs or tissues for altruistic consideration," the court said. Pertinently, the donor who volunteered was an employee of Uvais's relative. However, the Authorization Committee observed that the donor was a young woman with extreme vulnerabilities and did not rule out the possibility of a commercial transaction. This order was confirmed by the Department of Health.Initially, when the matter came up before the High Court, it directed the deputy superintendent of police to conduct an enquiry. He then produced the donor's statement that the donation was voluntary. Against this background, the High Court had remitted the matter back to the Committee. However, given that Uvais's application was rejected again, the present writ petition was preferred.The High Court, at the outset, perused Section 9 of the Act. As per this provision, the donation of human organs by a person who is not a near relative is permitted only with the prior approval of the Authorisation Committee. For context, S.2(i) defines “near relatives” as spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson or granddaughter.The procedure dictates that the Authorisation Committee will examine several factors. Inter-alia, the committee will find out if there is any commercial transaction, why the donor wishes to donate, evaluate the financial status of the donor etc. If it is satisfied that all the required conditions are fulfilled then a Certificate granting permission for the transplant will be issued.Building on this, the Court said that there is no definitive formula to categorically determine whether a donation is altruistic or a commercial one. It highlighted the need to have an “optimistic perspective” that non-near relatives exist who are genuinely willing to sacrifice their organs or tissues.“It's not to be forgotten that some compassionate individuals are willing to selflessly donate their organs to give a new lease of life to a family member or friend. So, it would be unpragmatic to assess every donation between non-relatives on arithmetical scales or view them with scepticism in such summary proceedings.,” the Court marked.It went on to observe that a rigid interpretation of Section 9, would render the provision “otiose and nugatory”. Even otherwise, nowadays, it is common knowledge that the number of recipients outnumber the donors., the Court said.Adverting to the Committee's rejection, the Court noted that the same was because of a suspected commercial element between the parties. However, it pointed out that the Committee had failed to evaluate the financial status of the donor. The same was mandated by the procedure and was important in order to assess the motive behind the donation.The Court added that, in case of doubt, the Committee should have sought clarifications from the petitioners instead of imposing a reverse burden to disprove a negative aspect.To support the Court's findings, reliance was placed on a thread of precedents including Association of Medical Super Speciality Aspirants & Residents v. Union of India, (2019) 8 SCC 607. Therein, the Supreme Court held that the right to health is fundamental to the right to life under Article 21 of the Constitution of India. Thus, every act that undermines human dignity amounts to a partial deprivation of the right to life. Such restrictions must align with a reasonable, fair, and just legal procedure.Based on...

Permission To Donate Human Organs Cannot Be Rejected Without Cogent Evidence Establishing Commercial Element: Kerala High Court

Gyanvi Khanna

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