Kerala High Court
Kochi: Swap transplants of organs amongst non-near relatives will be permissible if there is a special reason for such transplantation and the Authorisation Committee gives prior approval for the same, Kerala High Court has held.
The high court said provisions of the Transplantation of Human Organs and Tissues Act, 1994 to the extent it permits swap transplants only in cases of near relatives and curtails powers of the committee to approve non-near relative transplants for special reasons, has to be read down.
The ruling by Justice N Nagaresh came on a plea by four petitioners, two of whom required kidney transplants and the remaining two were donors, whose applications for swap transplantation was rejected by the Authorisation Committee for the reason that they were not near relatives.
"Petitioners 1 and 3 are patients with kidney problems. They require urgent transplantation of kidneys. Petitioners 2 and 4are ready to donate their kidneys. The 2nd petitioner is the wife of the 3rd petitioner. The 4th petitioner is the father-in-lawof the son of the 1st petitioner.
"In view of the mismatch of blood groups of 2nd and 3rd petitioners and of 1st and 4thpetitioners, they submitted applications for swap transplantation," the high court noted.
The state government defended the decision of the committee, saying the applications were rightly rejected as they did not fall in the category of near relatives as provided under the Act and the Guidelines for Altruistic and Exchange Donation issued by the Health and Family Welfare Department in 2018.
The court said if the Act permits transplant of organs to persons not being a near relative, with the prior approval of the Authorisation Committee, "there is no logic or rationale to say that swap ]transaction will not be allowed when members of each pair are not near relatives, even if the Authorisation Committee approves such transaction".
"The provision under the head ‘Swap Donation' contained in the Guidelines for Altruistic and Exchange Donation to the extent it permits swap donations only between near relatives, will be inoperative, as it goes against the provisions of the Act of1994 as stated hereinabove," the high court said.
It allowed the petitioners' plea challenging the rejection of their applications and directed the committee to reconsider the same and approve them "forthwith without any further delay", if the donors and recipients are otherwise eligible as per the court's observations and findings.