Kerala HC allows swap transplants between non-relatives

The government counsel also justified the action of the committee saying transplant can be allowed among blood relatives or spouses as per the transplantation of human organs and tissues act 1994

The Kerala high court on Monday ruled that swap transplant of organs will be permissible even if the donor and recipient are non-relatives, provided a special reason exists. Passing the judgement justice N Nagaresh recommended changes in the transplantation of human organs and tissues act, 1994.

The Kerala high court directed the authorisation committee to consider the applications of the petitioners afresh. (PTI File Photo)

The ruling came on a petition by two patients and two donors, including the wife of one of the patients, who was willing to donate her kidney to ailing husband but couldn’t since her blood group was not a match. Similarly, another patient’s son was willing to donate his kidney to father but they also faced the blood group problem. Though they submitted an application for swap transplant before the transplant authorisation committee, their pleas were rejected forcing them to move the court.

The government counsel also justified the action of the committee saying transplant can be allowed among blood relatives or spouses as per the transplantation of human organs and tissues act 1994. But the court found rejection of their request lacked logic or reasoning.

“In a case where a citizen’s life can be protected and preserved only by transplant of human organ or tissue, the citizen has a fundamental right under Article 21 of the Constitution to undergo organ transplantation, which right is subject only to the procedure established by law. Any law prescribing procedure for organ transplantation should therefore satisfy the test of reasonableness,” reported Bar Bench, quoting from the judgment.

The court focused mainly on Section 9 of the Act. While Section 9(3) permits organ transplants between persons who are not near relatives but Section 9(3A) prohibits swap transplantation between not-near relatives. The court said this is illogical and unreasonable.

“When Section 9(3) permits transplant of organs to persons not being a near relative, with the prior approval of the 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 committee approves such transaction. Therefore, Section 9(3A) should be read down so as to give full effect to Section 9(3) under which non-near relative transplants are allowed with the approval of the authorisation committee,” it said.

The court stated that it was clear that the act contemplates non-near relative organ transplantation and the condition is that the donor should have a special reason for giving authorisation for transplantation and prior approval should be obtained from the committee. The court directed the authorisation committee to consider the applications of the petitioners afresh. Many organ seekers said the new ruling will be a boon to them.