Being poor not a sin, cannot be ground to bar individual from donating organs: Kerala High Court

The Kerala High Court recently held that individuals cannot be barred from donating organs merely for the reason that they are poor (Reeja P & Anr. v. The District Level Authorisation Committee for Transplantation of Human Organs)..Single judge Justice PV Kunhikrishnan passed the judgment allowing a poor individual to donate her kidney to a person unrelated to her. "There is no rule that, poor people can't donate organs. Being poor is not a sin. The people with big hearts are there in plenty in our country and they can save them. That is how we can reduce the difference between haves and have-nots," the judgment stated.The Court also recorded its appreciation for news reports that publicise the case of hopeful organ recipients and can connect them to willing donors, irrespective of either individuals economic status. "Simply because a donor is coming from a poor family, there is no hindrance for donating the organs. If that is the case, the petitioner is also from a poor family. For this purpose, this Court can take judicial notice of report of Mathrubhumi which is one of the leading Malayalam daily newspaper in Kerala. We have to appreciate such news items items from print and visual media, so that the people with big hearts can come forward to help needy people," the Court said..The petition was filed by a person suffering from renal failure challenging the order of the district level authorisation committee which had rejected the application submitted by her seeking approval to receive a kidney from the second petitioner. .Advocate CM Mohammed Iquabal, appearing for the petitioner, submitted that both the kidneys of the petitioner have failed and she requires urgent transplantation as she has been going through dialysis thrice every week.He pointed out that none of her close relatives are suitable for transplantation for various reasons and that one of her sons also suffers from Spastic Cerebral Palsy.The petitioner has to care for the child with only the meagre income from a tea stall run by her husband.Under these circumstances, the story of the petitioner was published in the popular Malayalam daily, Mathrubhumi.Subsequently, the second petitioner, a close family friend, came forward as a willing donor. However, the application preferred by them along with all the necessary documentation was rejected by the authorisation committee..Senior Government Pleader Rashmi KM submitted that the committee, after going through the records and after interrogating the petitioners, came to the conclusion that the approval cannot be granted in this case.The relevant portion of the order of the committee reads thus:"Altruism regarding the transplantation is not proved before the committee. Document signed by the village officer pudunagaram is found to be false from interrogation with his husband and wife enrolled in the document. Donor is coming from a poor family and staying at Kannanaloor colony, at Kollam District where it was learned there were several unrelated previous kidney donors.".Regarding the contention that the document signed by the village officer was false, the Court noted that when the donor and her husband were interrogated there was some confusion regarding their place of residence.However, the Court found it hard to find a plausible reason for the committee to have concluded that the document is false especially because it has no authority to do so..The Court also highlighted the importance of dealing with such interrogations in a sensitive manner that accommodates the needs of persons from different socio-economic classes."While interrogating the parties, the respondent should take a mild stand. The intention of the respondent should be only to find out whether there is commercial transaction. Parties may be coming from remote village area. A friendly atmosphere is to be created by the respondent while interrogating," the judgment stated..The stance of the committee that the donor cannot be accepted as she hails from a poor family and that there are other unrelated kidney donors in the area, was rejected outright by the Court.The only duty of the committee is to ascertain whether there was any illegality or commercial transaction between donor and recipient, the Court held. .The Court therefore, allowed the petition and directed the committee to reconsider the application and pass appropriate orders in accordance with law expeditiously..Justice Kunhikrishnan had earlier penned another judgement regarding organ donation in which it was held that criminal antecedents of a person cannot be criteria when it comes to organ donation and the Transplantation of Human Organs and Tissues Act, 1994 does not make any such distinction against persons with criminal record "There is no organ in the human body like a criminal kidney or criminal liver or criminal heart," the Court had said in the judgement.The Court had also expressed its hope that the Act could help bridge the gap between communities saying, "Let the Act 1994 become a path breaker for communal harmony and the idea of secularism. Let the Hindus, Christians, Muslims, Sikhs and even persons with criminal backgrounds donate their organs to needy people irrespective of their caste or creed or religion, or criminal background..[Read Judgment]