Expressing concern over complaints of most hospitals in Tamil Nadu being reluctant to perform organ transplantation if the donor was not a relative of the recipient, the Madras High Court has said that such refusal would be “plainly illegal” since the Transplantation of Human Organs and Tissues Act, 1994, permits even non-relatives to donate organs.
“The hospitals in Tamil Nadu appear to have pinned themselves to their committed reluctance to entertain a non-relative for an organ donor when the Act does not insist that the donor should be a relative. This attitude is worrisome as it holds the potential to undermine the objectives behind the Act and defeat its purpose,”Justice N. Seshasayee wrote.
He went on to state: “This court has reasons to believe that the apprehensions of the hospitals here to entertain organ transplantation between non-relatives is more due to inadequate awareness on the law on the topic. This court trusts that the aforesaid discussion (in the judgment) may help the physicians and hospitals in gaining in confidence in dealing with the issue.”
The judge also expected the State government to take a lead in the matter and ensure proper legal education on the subject to physicians and hospitals. The verdict was passed while disposing of a writ petition filed by kidney failure patient J. Kaja Moinudeen, a doctor by profession, seeking approval for kidney transplant to save his life.
Petitioner’s counsel S. Haja Mohideen Gisthi told the court that his client could not find a suitable donor in his family and, hence, one Ramayee, a well-wisher, came forward to donate her kidney to him. He approached various hospitals in Tamil Nadu between June and October 2022, but none of them entertained the idea of a non-relative as a donor.
A hospital at Kochi in Kerala found her kidney suitable for transplantation after cross-matching various parameters and the entire document process was completed by May 2023 except for the approval required from the Authorisation Committee as there was confusion on whether such approval must be granted by the committee in Tamil Nadu or Kerala.
Empathising with the situation of the petitioner, the judge wrote: “This writ petition presents a spectre of what this court may term as bureaucratic reluctance familiar in our system that germinates out of administrative apprehensions. A doctor, who may have helped save many lives, now finds himself in a state of helplessness to save his own life.”
After tracing the history of the 1994 legislation and the subsequent amendments, the judge held that the authorisation must be given only by the committee in the State where the donor and the recipient reside. Since in the present case, both of them were from Tamil Nadu, the judge directed them to appear before the Authorisation Committee in Coimbatore within a week.
Thereafter, the Coimbatore South Tahsildar was must conduct an inquiry into their residential status and submit a report to the Committee.
After submission of the report, the Committee must pass necessary orders within four weeks after examining the application in terms of the Act and the statutory rules framed thereunder. “In case, the Authorisation Committee grants approval under Section 9(5), it shall forward the same to the Authorisation Committee/Hospital Committee at the Lakeshore Hospital, Kochi, so as to enable them to take appropriate steps to complete the transplant at the earliest. If the Authorisation Committee refuses to grant approval, it is left open to the petitioner to avail the remedy of an appeal under Section 17 of the Act,” the judge concluded.
