13 Dec 2022 7:06 AM GMT
The Delhi High Court has held that in cases of organ transplant from a non-near relative, the difference in financial position of the donor and the recipient, by itself, cannot be a reason strong enough to establish a commercial element.Justice Prathiba M Singh made the observation in a judgment allowing a petition seeking expeditious disposal of an application for...
The Delhi High Court has held that in cases of organ transplant from a non-near relative, the difference in financial position of the donor and the recipient, by itself, cannot be a reason strong enough to establish a commercial element.
Justice Prathiba M Singh made the observation in a judgment allowing a petition seeking expeditious disposal of an application for kidney transplant.
"The Court is satisfied that there is no commercial transaction involved in the donation of the kidney in the case at hand. Accordingly, the application filed by the Petitioner before the Authorization Committee for transplant of the Donor's kidney to the Recipient is allowed subject to above conditions," said the court.
The Authorisation Committee had earlier objected to the petitioner's application seeking approval for kidney transplant from her maternal aunt, on the ground that the ITR status of the donor did not show very sound financial status.
The Committee had also observed "The Donor being the single parent burdened with responsibility of maintaining her child and at the same time looking after her business seems to be in a vulnerable position to donate if god forbids anything happen to him who would look after her son"
The recipient, who was represented by Advocates Shyel Trehan and Vignesh Raj, submitted that the donor is a financially independent woman and the application cannot be rejected merely because the donor and recipient come from different financial backgrounds.
Advocate Tara Narula, who was appointed as the Court Commissioner, confirmed to the court that the donor is making an informed decision and has made plans for her care and recovery from the transplant surgery.
The Court in the order noted that the donor's son is 21-22 years old and supports her in her business. It added that the family of the recipient may be rendering some moral and logistic support to the donor, her being the maternal aunt of the recipient.
"However, that by itself cannot disqualify the Donor from donating her kidney. The Supreme Court in Kuldeep Singh v. State of Tamil Nadu 2005 (11) SCC 122 has observed that the Authorisation Committee is required to ascertain the true intent and purpose for the authorisation to remove the organ and whether any commercial element is involved as a part of the transaction. To arrive at the conclusion, the Committee can take into consideration factors such as period of acquaintance, degree of association, reciprocity of feelings, and similar human factors," said Justice Singh.
The bench said the donor's interaction with the Local Commissioner and the court reveals that the motivation for donating kidney is love and affection and there is no commercial element involved as a consideration for donating kidney in the present case.
Advocate Trehan also told the court that the recipient and her family is willing to give undertaking that they would provide medical care, including an attendant, which may be required for the donor during and post the transplant.
"The Donor is living in the same building as that of the Recipient and her family. In case any support is required for the Donor's son, the undertaking of the Recipient and her family is recorded and accepted by the Court. It is further submitted by Ms. Trehan, ld. Counsel, that the family would not be hesitant in rendering all the support possible to the son as well," the court said in the order.
CASE TITLE: ADITI GOSWAMI v. GOVT. OF NCT OF DELHI & ORS.
Citation: 2022 LiveLaw (Del) 1165
Click Here To Read Title