Karnataka HC Sets Aside Condition Requiring Organ Donor To Obtain Consent From Her Estranged Father For Transplant [Read Order]

While directing the authority to decide the application for sanction expeditiously, the single bench of Justice Nataraj Rangasway said,

"Action of the Respondent No. 1 requiring the Petitioner No. 2 [Organ donor] to furnish the consent from her estranged father tantamount to imposing an onerous condition which cannot perhaps be complied."

The court also directed the authority to decide the application filed by the petitioners within seven days. It said,

"Having regard to the fact that the petitioner no.1 is stated to be on dialysis for more than three years, the respondent no.1 is requested to expedite the decision within seven days from the date of the receipt of a copy of this Order."

Background

Petitioner No. 1, suffering from renal failure, was aggrieved by a Certificate issued by the Authroization Committee, withholding the permission for organ donation by Petitioner No. 2 (wife of cousin of Petitioner no. 1).

She had submitted that previously, her cousin had volunteered to donate his kidney and after interviewing all her near relatives, the Authority had permitted the donation. However, when a final check was conducted on the scheduled date of transplantation, the said cousin was diagnosed as Type II diabetic and thus the transplantation was abandoned.

In this backdrop she contended that the authority was well aware that her near relatives, such as her husband, daughters, brothers and sister were either medically not fit or their blood groups did not match with her. Therefore, the authority was not justified in directing her to show cause why her "near relatives" could not be donors.

Further, she had contended that the authority was unjustified in asking the Petitioner No. 2 to furnish a consent letter from her "estranged father", especially when the donor-Petitioner's husband had furnished an affidavit consenting to the donation.

Petitioner No. 1 contended that though the donor-Petitioner was not a "near relative" of hers, Section 9(3) of the Transplantation of Human Organs and Tissues Act, 1994 permits donation of organs by persons who were not near relatives "by reason of affection or attachment towards the recipient."

She averred that the intendment of the Act is to prevent "commercial dealings" in human organs and the same should not have been an impediment in her case as the donor-Petitioner had offered to donate her kidney out of "natural love".

Findings

The Court set aside the "onerous condition" requiring the Petitioner No. 2 to obtain consent from her father, who had apparently abandoned deserted her and her mother three decades ago.

On the other condition imposed by the Respondent-authority on the Petitioner No. 1 to disclose as to why her near relatives have not offered to donate the organ, the court was of the opinion that the condition "cannot be found fault with", as the whole purpose and the intendment of the Act of 1994 is to ascertain and rule out commercial consideration for the intended transplantation.

At the same time however, the Court remarked,

"Respondent no.1 should take cognizance of the fact that it had earlier granted the permission for the husband of the petitioner no.2 to donate the kidney at which point in time, the respondent no.1 must have ascertained the question as to why the near relatives of the petitioner no.1 were not donating the kidney.

… Having regard to the fact that the petitioner no.1 is stated to be on dialysis for more than three years, the respondent no.1 is requested to expedite the decision within seven days from the date of the receipt of a copy of this Order."

The court has asked the authority to consider the application for sanction in the light of the lab reports taken previously, and also taking into consideration the fact that it had earlier granted the permission for donation by the Petitioner's cousin at which point it must have ascertained the question as to why the near relatives had not offered to donate the kidney.

"It shall reassess the medical condition of the petitioner no.1 to ascertain whether the transplantation would be beneficial or fruitful," the court added.

Significantly, the State had opposed the writ petition on the grounds of maintainability. It had contended that if the Petitioner was aggrieved by withholding of sanction for donation, she should have preferred a statutory appeal under Section 17 of the Act.

Rejecting this argument at the outset, the court clarified that the impugned Certificate was not an Order rejecting the application filed by the petitioners but was in the nature of an intimation requiring the petitioners to furnish additional documents.

"It therefore follows that the respondent no.1 has not taken a final decision on the application filed by the petitioners.

An appeal under Section 17 of the Act of 1994 would arise only when a final decision is passed. Since the respondent no.1 has not taken a final decision, the threshold contention of the learned Government Pleader that the writ petition is not maintainable in view of the alternative remedy, is rejected," it said.

Case Details:

Case Title: Shailaja Madathil Valappil & Anr. v. State Level Authorization Committee for Transplantation of Human Organs & Anr.

Case No.: WP No. 8148/2020

Quorum: Justice Nataraj Rangasway

Appearance: Advocate Ravi SK (for Petitioner); Government Pleader Jyothi Bhat (for State)

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