Hospitals Cannot Refuse To Perform Transplants From Non-Related Donors, Legal Education On The Subject Necessary: Madras High Court

Justice N Seshasayee also commented that the apprehensions of the hospitals is mostly due to inadequate awareness of the law on the subject. The court was thus of the opinion that proper legal education on the subject was necessary for physicians and hospitals and the government had to ensure the same.

“This Court has reasons to believe that the apprehensions and reluctance of the hospitals here to entertain organ transplantation between non-relatives is more due to inadequate awareness on the law on the topic. This Court trusts that the aforesaid discussion may help the physicians and hospitals in gaining in confidence in dealing with the issue. All it now requires is proper legal education on the subject to the physicians and the hospitals, and this Court expects the Govt. to take the lead in the matter,” the court said.

The court was hearing the plea of Kaja Moinudeen, who himself was a doctor and suffering from chronic kidney disease since June 2022. A nephrologist had advised Moinudeen to undergo a kidney transplant and when an attempt to get a donor from the family failed, a well-wisher offered to donate a kidney out of love and affection. However, Moinudeen informed the court that when he approached the hospitals in Tamil Nadu, the doctors did not entertain the idea and thus he approached Lakeshore Hospital in Kerala.

Moinudeen informed the court that all documentation process was completed except for an NOC under Section 9(4) of the Act. Moinudeen told the court that he was in affix as the Authorization Committee in Tamil Nadu was saying that the NOC was not necessary while the Authorization Committee in Kerala stressed the need for one.

Calling it a “bureaucratic reluctance”, the court highlighted that the hospitals in Tamil Nadu have been continuously showing reluctance to entertain a non-relative for organ donation and this attitude had the potential to undermine the objectives of the Act.

The court pointed out that as per the 2014 Rules when the donor was a non-relative, the only requirement was a verification of the residential status by the Tahsildar or other authorized officer of the donor or the recipient when either of them resided at a State/UT other than the State/UT where the transplantation was proposed to be done. After such verification, the material was to be placed before the Authorisation committee to take a call to see whether permission ought to be granted.

The court underlined that the Non-Objection Certificate which was a requirement as per the earlier 2008 Rule, was no longer a requirement under the new Rules. The court noted that as per the new rules, the only requirement for an NOC was from a Senior Embassy Official when the donor or recipient was a foreigner.

Relying on the decision of the Apex court in Kuldeep Singh v. State of T.N., the court pointed out that since the donor and the recipient were residents of Tamil Nadu and only the transplantation was intended to be carried out in Kerala, the Authorisation Committee in Tamil Nadu was to examine the case and decide whether approval could be granted as per the Act and the rules.

Thus, the court directed Moinudeen and his donor to appear before the Authorisation Committee for approval. The court also directed the Tahsildar to conduct an inquiry in terms of Rule 14 of the Transplantation Rules and submit a report to the Authorisation Committee which shall then examine the case in line with the parameters prescribed under the Rules and pass orders approving or rejecting the case.

Further, if the committee was to grant approval, the court directed it to be forwarded to the Authorisation Committee/ Hospital committee in Lakeshore Hospital in Kerala to enable them to take appropriate steps. In case the committee was to refuse the grant of approval, the court gave liberty to Moinudeen to avail the remedy of appeal under the Act.

Counsel for the Petitioner: Mr.S.Haja Mohideen Gisthi

Counsel for the Respondent: Mr.C.Kathiravan Special Government Pleader

Citation: 2023 LiveLaw (Mad) 316

Case Title: Dr.J.Kaja Moinudeen v The Authorization Committee (Transplantation)

Case No: W.P. No.27106 of 2023