Organ transplants | Non-related donor’s consent must be accepted, says Madras High Court

Justice G.R. Swaminathan says, permission must be granted unless the authorisation committee is in possession of evidence to prove money/money’s worth having changed hands

Updated - May 31, 2024 03:54 am IST

Published - May 30, 2024 09:11 pm IST - CHENNAI

The issue of granting authorisation must be looked into with the avowed object of saving the life of a person and not from a technical point of view, the court said.

The issue of granting authorisation must be looked into with the avowed object of saving the life of a person and not from a technical point of view, the court said. | Photo Credit: PICHUMANI K

In a verdict that would have major implications for organ transplantation, the Madras High Court on Thursday held that the consent given by a donor, even if he/she is not related to the recipient, must be accepted by the authorisation committee at its face value unless there is evidence to prove money or money’s worth having changed hands.

Shifting the burden of proof from the donor/recipient to the authorisation committee, Justice G.R. Swaminathan wrote that the donor and the recipient “can only assert that there is no commercial dealing. They cannot be called upon to prove the negative... Too much of burden cannot be laid on their shoulders.”

In case of doubt, the authorisation committee could seek explanation from the applicants and if necessary, a verification could also be carried out through the government officials. “Unless there is definite material to establish financial dealings, permission must not be withheld or rejected,” the judge said.

If the donor states that it was only out of love and affection that he/she was making the organ donation, such an averment should not be doubted at all in the absence of any credible reason, the court said and observed that the government must also come out with definite guidelines in this regard.

“Otherwise, the issue will be left to the arbitrary discretion of the authorisation committee. If the recipient is well placed and connected, the decision of the committee will swing in his favour. If the recipient is not all that influential, permission can be rejected by passing a template order,” the judge said.

Altruistic considerations

The Parliament, by enacting the Transplantation of Human Organs and Tissues Act of 1994, never intended to rule out donation by non near relatives. Therefore, its intent must not be frustrated by adopting a rigid approach and taking a cynical view that a non near relative would not donate out of altruistic considerations, he said.

“All religions proclaim that love and charity are the highest virtues. Hundreds and thousands have given up their lives for larger and impersonal causes. It is not necessary that selfish consideration should underlie all human endeavour. Certain statements can be taken at their face value,” the judge added.

The issue of granting authorisation must be looked into with the avowed object of saving the life of a person and not from a technical point of view. Further, since time was the essence in matters of such nature, the authorisation committees should take speedy decisions without sitting over the applications, the court said.

Further, disapproving the practice of considering the length of the association between a donor and a recipient as a factor before granting authorisation, the judge said: “This may not always be a sound approach. There is something called ‘love at first sight.’ Love and affection are intangible sentiments. On the other hand, time is measurable.”

Post-operative care expenditure

Also cognizant of the fact that there was exploitation of the poor and the disadvantaged too in such matters, the judge said, it would be the duty of the organ recipient to bear the expenditure for post-operative care of the donor. He said, the 1994 Act does not impose any bar on covering health expenses of an altruistic donor.

“A person donating kidney would require nutritious diet. Health complications can arise in future... Therefore, the recipient is obliged to defray such expenditure and it is the duty of the authorisation committee to see to it that this obligation is discharged,” he observed.

Taking a cue from the Surrogacy (Regulation) Rules and Assistive Reproductive Technology (Regulation) Rules which mandate the beneficiaries to purchase a general health insurance coverage in favour of surrogate mothers/oocyte donors, the judge said, a similar insurance should be taken in favour of kidney donors too.

“Apart from taking medical insurance coverage, a lump sum deposit shall be directed to be made to the credit of the authorisation committee. The committee shall issue directions for crediting a fixed sum every month in the bank account of the donor for a period of three years. This arrangement will ensure direct transfer of benefit to the donors,” Justice Swaminathan added.

The verdict was delivered while disposing of a batch of four writ petitions filed by four different sets of kidney recipients and non near relative donors complaining about a private hospital in Coimbatore not forwarding their applications to the authorisation committee.

Hospitals exonerated

Taking note of the submission made by the hospital’s counsel Elizabeth Seshadri that hospitals often exercise restraint when the donor happens to be a non near relative, the judge ordered that henceforth, the hospitals need not forward the applications and that the donors and recipients could submit them directly before the committee.

“The applications in Form 11 can be submitted in person or through registered post or through online mode. It is for the State government to issue guidelines regarding the mode of submission. Till such guidelines are issued, it is open to the parties to choose any of the three modes,” the judge clarified.

Exonerating the hospitals from undertaking the task of forwarding the applications, the judge said, the duty of a doctor was confined to signing Form 4 which certifies the medical fitness of the donor. Since Form 4 uses the expression ‘informed consent,’ the judge said, the doctor must explain the possible hazards to the donor.

“It would be in the interest of the doctor concerned to videograph the entire session wherein the counselling takes place. The doctor is not supposed to encourage the donor to donate his/her organ. When a donor approaches a doctor and informs the doctor that he/she is willing to donate his/her organ, the doctor has to apprise the donor about the consequences. After the issuance of Form 4, it is for the donor and the recipient to move the authorisation committee,” the judge concluded.

Before parting with the case, the judge pointed out that Rule 5(3) of the Transplantation of Human Organs and Tissues Rules, 2014 uses the word ‘shall’ twice in the same sentence though it would have been suffice to use it once. Therefore, he, in a lighter vein, said: “Human beings are also endowed with two kidneys though one would suffice. Rule 5(3) would do well with one ‘shall.’ It is for the grammarians to comment on this.”

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