'Swap transplants' permissible even if each donor-recipient pair not near relatives, says HC
TP Sajid, counsel for the petitioners, pointed out that the Authorisation Committee rejected both sets of applications holding that the petitioners do not come under the purview of ‘near relative’
KOCHI: The Kerala High Court on Monday held that 'swap transplants' will be permissible even if each donor-recipient pair are not near relatives, provided there exists a special reason for the donor to donate an organ.
Justice N Nagaresh issued the order while allowing the petition filed by Moideenkutty, Malappuram, Jameela Saleem, Kannur, Saleem, Kannur, and Ummer Farooque KP, Malappuram, challenging the order of the Authorisation Committee for Transplantation of Human Organs rejecting the plea for swap transplantation. Moideenkutty and Saleem are kidney patients. Jameela Saleem, the wife of Saleem, and Ummer Farooque, the father-in-law of the son of Moideenkutty, are ready to donate their kidneys.
TP Sajid, counsel for the petitioners, pointed out that the Authorisation Committee rejected both sets of applications holding that the petitioners do not come under the purview of ‘near relative’ as per the Transplantation of Human Organs and Tissues Act. The counsel argued that they require urgent kidney transplantation and rejection of their applications would offend their right guaranteed under Article 21 of the Constitution of India.
The government pleader argued that though Jameela Saleem, being the wife of Saleem, would be a near relative, Ummer Farooque cannot be treated as a near relative as defined under the Transplantation of Human Organs and Tissues Act.
The court observed 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 Authorisation Committee. The prime purpose of the enactment is facilitating the transplantation of human organs for therapeutic purposes.
When Section 9(3) 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 transactions will not be allowed when members of each pair are not near relatives, even if the Authorisation Committee approves such transactions.
The court directed the committee to consider the applications of the petitioners and approve the same forthwith without any further delay.