The Kerala High Court on Monday ruled that that “swap transplants” will be permissible even if each pair of donor-recipients were not near-relatives, provided there existed a special reason for the donor to donate an organ.
Justice N. Nagaresh also held inoperative the provisions under the head “swap donation” contained in the Guidelines for Altruistic and Exchange Donation framed by the State Government to the extent it permits swap donations only between near-relatives as it went against the provisions of Section 9(3) of the Transplantation of Human Organs and Tissues Act, 1994.
When Section 9(3) permitted transplant of organs to persons not being a near-relative, with the prior approval of the Authorisation Committee, there was no logic or rationale to say those swap transplants would not be allowed when members of each pair were not near-relatives, even if the committee approved such transactions, the court observed.
According to this law, an unrelated donor could donate his or her kidney to a recipient whose family member would in return donate one kidney to another patient. This method is successful for those whose blood group does not match within the family and requires kidney donation from a stranger.
The court made the ruling while allowing a writ petition filed by Moideenkutty of Malappuram, and three others challenging the order of the Authorisation Committee for Transplantation of Human Organs rejecting their plea for swap transplantation.
The court observed that the Act contemplated non-near relative organ transplantation and the condition was that the donor should have a special reason for giving authorisation for transplantation and prior approval should be obtained from the committee. The prime purpose of the enactment was to facilitate the transplantation of human organs for therapeutic purpose.
The petitioners pointed out that the Authorisation Committee rejected their applications holding that the petitioners did not come under the purview of near-relative as per the Transplantation of Human Organs and Tissues Act.
They required urgent kidney transplantation and rejection of their applications would offend their right guaranteed under Article 21 of the Constitution of India.
Published - November 15, 2021 10:47 pm IST
