Punjab & Haryana HC Allows Kidney Swap Transplant Between Persons Not 'Near Relatives', Says Can't Afford Loss Of Life Due To Technicalities

The Punjab and Haryana High Court has recently allowed 'swap transplantation' of kidneys between persons not related to each other as per the definition of 'near relatives' under the Transplantation of Human Organs and Tissues Act, 1994. Noting that even though a 'mother-in-law and a 'son-in-law' would not fall within the definition of 'near relatives' as per the Act, the single bench of Justice Vinod S. Bhardwaj, while allowing for swap transplant, said that: "The object of Section 9 (3)(A) should not be permitted to be defeated by a rigid, dogmatic and stigmatic interpretation and not to include people who get related by matrimony and would have same love and affection." Petitioner nos. 1 and 2 were suffering from kidney ailments and were advised to undergo the kidney transplantation. Petitioner no. 4, the mother-in-law of petitioner no. 1, and petitioner no. 3 – the wife of petitioner no. 2 agreed to donate their kidneys, however, due to biological incompatibility between petitioner nos. 1 and 4 and between petitioner nos. 2 and 3, respectively, transplants were not possible. Upon discovery of cross-over compatibility between petitioner nos. 1 and 3, and petitioner nos. 2 and 4, the donors – petitioner nos. 3 and 4, voluntarily and out of natural love and affection agreed to donate their kidneys to petitioner nos. 1 and 2, respectively. For this, the petitioners applied for 'swap transplantation' under the 1994 Act r/w the Transplantation of Human Organs and Tissues Rules, 2014, which application was rejected by the Authorization Committee of the hospital, PGIMER, Chandigarh, based on the ground that swapping of organs was not possible in this case, since a 'mother-in-law' and 'son-in-law' could not be said to be 'near relatives.' Upon rejection of their application, the petitioners, approached the High Court praying for the issuance of a writ in the nature of mandamus to grant them approval to engage in 'swap transplantation,' setting aside the decision of the Authorization Committee. Contentions of the petitioners The petitioners contended that the decision of the Authorisation Committee was passed in ignorance of the object of the Act, which as per the Supreme Court decision in Kuldeep Singh and Others v. State of Tamil Nadu, (2005) 11 SCC 122, is to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and to prevent commercial dealings in human organs. They argued that in the absence of any commercial element and the arrangement being purely humane in this case, there was no reason for the Committee to reject their application. The petitioners also contended that a rigid or dogmatic approach could not be adopted or promoted in view of the object of the Act and that the Committee through its decision failed to take into account the larger public cause and concern which was in issue. Contentions of the respondents The respondents, argued that there was no illegality, perversity or impropriety in the order passed by the Authorization Committee, since the Committee had acted within the strict compliance of the Act and the Rules. Ruling The Court, after noting the object of the Act, which was to prevent commercial dealings in organs, observed that the test which had to be met in cases of swap transplant was to rule out the possibility of commercial element in the transplant. The Court said that: "Loss of human life should not be permitted merely at the altar of technicalities and more so when the possibility of commercial transaction in such swapping has been completely ruled out. The donor for petitioner no.1 is his mother-in-law and as such, it cannot be construed that the said donor has agreed to donate her kidney for commercial reasons." "The social family bonds; the social fabric and family structure in the Indian Sub-Continent is also required to be kept in consideration and such relatives from the family of the spouse cannot be isolated as completely distant or wholly unrelated" – added the Court. Accordingly, the High Court in exercise of its inherent and equitable jurisdiction set aside the order of the Authorisation Committee and granted permission to the petitioners to swap their kidneys. Case Title: Ajay Mittal and Others v. Union of India and Another Citation: CWP NO.26361 OF 2022 Coram: Justice Vinod S. BhardwajCitation: 2022 LiveLaw (PH) 330 Click Here To Read/Download the Order

Punjab & Haryana HC Allows Kidney Swap Transplant Between Persons Not 'Near Relatives', Says Can't Afford Loss Of Life Due To Technicalities

Rahul Garg

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