Kerala High Court urges State to form hospital-based committees to speed up organ donation approvals

The Kerala High Court recently urged the Kerala government to take steps to establish hospital-based authorisation committees in the State to ensure quicker decisions on applications seeking permission for organ donation between non-relatives [Jillet & anr v State of Kerala & ors].

The Court explained that Rule 11(4) of the Transplantation of Human Organs and Tissues Rules, 2014 (Rules) required the State to set up hospital-based authorisation committees for organ donations in hospitals conducting 25 or more transplants annually.

Such hospital-based committees were one of three kinds of authorisation committees envisioned under the Transplantation of Human Organs and Tissues Act, 2012 - the other two being the State Authorisation Committee and additional authorisation committees in various districts.

In an order passed on October 14, Justice VG Arun expressed surprise over the fact that in Kerala, all applications for permission to donate organs are being considered only by the district level authorisation committee, since hospital based committees are yet to be notified. This was leading to indefinite delays in getting such approvals, the judge noted.

The Court also flagged concern over the failure to include persons with experience and knowledge in different fields in authorisation committees. Inclusion of such members is intended to bring about a balance in the committee, the Court highlighted.

Therefore, the Court has now asked the State to take corrective measures on both counts.

"It is imperative for the State Government to constitute Hospital Based Committees and ensure induction of the members in accordance with Rules 12 and 13. The needful in this regard ought to be done without further delay, so that the laudable objectives of the Act are not defeated," the Court said.

The order was passed in a case where an application for a kidney donation was rejected by both the district and State committees.

The case concerned an autorickshaw driver who was a chronic kidney patient in need of renal transplant surgery, and a willing organ donor. The donor said that he had volunteered to donate his organ to the patient out of affection.

Since they were not near relatives, they approached the district level committee with an application seeking approval for the organ donation.

However, the committee rejected their application, suspecting commercial motives behind the donation, a decision which was also upheld by the appellate authority.

Consequently, the patient and the donor (petitioners) filed a writ petition before the High Court challenging the rejection.

The Court noted that while the 2012 Act was designed to prevent commercial dealings in human organs, it also meant to enable altruistic donations.

In this case, the Court opined that the absence of any photos of the patient and the proposed donor together should not automatically lead to suspicions that the two were strangers and that the organ donation was motivated by commercial interests.

"It is extremely difficult, rather impossible, to provide proof of feelings like love and affection. Absence of photographs featuring the donor and recipient cannot also be the reason for negativing the donor's version that he had volunteered to donate his organ out of love and affection," the Court said.

The Court also pointed out that organ recipient was an autorickshaw driver whose transplant operation was being crowd-funded.

This led the Court to question the theory that there was a commercial element to the proposed organ donation. It, therefore, set aside the rejection of the application and asked the district level organ donation authorisation committee to take a fresh decision.

The petitioners were represented by Advocates C Achacko, CM Charisma, and Babu VP, while Senior Government Pleader Deepa Narayanan appeared for the State. Advocate Thomas J Anakkallunkal appeared for the Rajagiri Hospital.

[Read Judgment]