Refusal by hospitals to perform transplants concerning unrelated donors would be plainly illegal: Hon’ble Madras High Court
Title: Mr.S.Haja Mohideen Gisthi v. Mr.C.Kathiravan Special Government Pleader
W.P. No.27106 of 2023
Decided on: 09.10.2023
CORAM: JUSTICE N.SESHASAYEE
Introduction:
The writ petition was filed under Article 226 of the Constitution of India for a Writ of Mandamus, directing the respondents to issue a No Objection Certificate, considering the petitioner’s pathetic case, and grant approval for kidney transplantation on a priority basis and save his life.
Facts of Case:
The petitioner, a doctor by profession, was diagnosed with chronic kidney disease (CKD) in June 2022 and was put on dialysis. The nephrologist advised him to go for a kidney transplant but his attempt to make his wife, child, and relatives as donors failed. The petitioner contended that Mrs. Ramayee a well-wisher offered to donate a kidney out of “love and affection”. However, the hospitals of Tamil Nadu didn’t entertain the idea of a non-relative as a donor, the petitioner then approached Lakeshore Hospital at Cochin. The kidney of Ramayee’s was found suitable for transplant and all the documents required were prepared there. The NOC under Sec.9(4) of the Transplantation of Human Organs and Tissues Act, 1994 was needed.
A proposal for NOC was sent to The Authorization Committee (Transplantation), which stated that there is no need for a NOC and the same was notified to The Authorization Committee in the state of Kerala which demanded the NOC. Petitioner being in dire need approached the Hon’ble High Court of Madras.
Court’s Analysis and Decision:
The court observed and held that the hospitals in Tamil Nadu can’t deny the transplant by a non-relative as that would be plainly illegal. The Hon’ble Madras High Court adds “This Court has reasons to believe that the apprehensions and reluctance of the hospitals here to entertain organ transplantation between non-relatives is more due to inadequate awareness of the law on the topic.”
The requirement of a NOC, which was incumbent under Rule 6-B of the 2008 Rules is no longer a requirement under the 2014 Rules. But On the issue of who has to grant the permission where the donor and recipient are of the same state but the hospital of transplant is of a different state that is Kerala, the court applied the rule in Kuldeep Singh v. State of Tamil Nadu.
Thereby the Hon’ble High Court directed the petitioner and the donor to present themselves before the Authorisation Committee for Approval of Cases for Renal Transplantation at Coimbatore within one week; and the Tehsildar to conduct an inquiry in terms of THOT Rules, 2014 and submit the report to Authorisation Committee within one week; Thereafter the Authorisation Committee to examine the case of petitioner and his donor under Rule 7(3) of THOT Rules, 2014.
The Hon’ble High Court added In case the Authorisation Committee refuses to grant approval, it is left open to the petitioner to avail the remedy of an appeal.
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Written by: Sushant Kumar Sharma