SMT. SHAILAJA MADATHIL VALAPPIL Vs. STATE LEVEL AUTHORIZATION COMMITTEE FOR TRANSPLANTATION OF HUMAN ORGANS

JUDGEMENT

(1.) The petitioners have sought for a Writ in the nature of Certiorari to quash the certificate dated 12-12-2019 issued by the respondent no.1 withholding the permission for organ donation by the petitioner no.2 to the petitioner no.1. The petitioners have also sought for a direction to the respondent no.1 to consider the case of the petitioner no.2 for donation of one of her kidneys without insisting the consent of her father.

(2.) The petitioner no.2 is a Donor and the petitioner no.1 is a recipient of a human organ - kidney while the respondent no.1 is the State Committee constituted under Section 9(4)(b) of the Transplantation of Human Organs and Tissues Act, 1994 (henceforth referred to as 'the Act of 1994').

(3.) The assertions in the writ petition disclose that the petitioner no.1 suffered a renal failure which aggravated to end stage and she is on haemodialysis from the last three years. The petitioner no.1 was treated by Dr.Janardhan Kamath at Justice K.S.Hegde Charitable Hospital, Deralakatte at Mangaluru, which is a hospital registered under Section 14 of the Act of 1994 (henceforth referred to as 'the Hospital'). The petitioner no.1 was advised to undergo transplantation of kidney to arrest further deterioration of her health. However, the near relatives of the petitioner no.1 such as her husband, daughters, brothers and sister were either medically not fit or their blood groups did not match with the petitioner, which hurtled the chances of the petitioner no.1 effortlessly receiving the organ in donation. It is stated that the cousin of the petitioner no.1 volunteered to donate his kidney to the petitioner no.1 and they filed the prescribed application for sanction by the respondent no.1. The petitioner no.1 and all her near relatives attended the personal interview convened by the respondent no.1 during January 2019 following which the respondent no.1 permitted the donation in terms of a Certificate dated 21- 01-2019. The Hospital fixed the date of surgery for extraction of the organ on 07-03-2019. However, when a final check was conducted on the scheduled date, the cousin of the petitioner no.1 was diagnosed as Type II diabetic and thus the transplantation was abandoned. Thereafter, the petitioner no.1 scouted for a donor which went in vain. It was then that the petitioner no.2, who is the wife of the cousin of the petitioner no.1 and who had natural love and affection towards the petitioner no.1, offered to donate her kidney. Thus, the petitioners complied all the preliminaries and submitted an application through the Hospital in the prescribed form enclosing therewith the reports for sanction by the respondent no.1 on 31-07-2019. The husband of the petitioner no.2 furnished an affidavit consenting to the donation. The petitioner no.2 did not mention about her parents in the affidavit filed by her. The respondent no.1 summoned the petitioners and their near relatives for a personal interview on 12-12-2019 whereat, the petitioner no.2 disclosed that though her father was alive, she could not secure his consent as her father had deserted her and her mother about three decades ago and that he had contracted another marriage and was living separately for more than three decades. The respondent no.1 after a personal interview with the petitioners and their near relatives issued a certificate in Form 18 withholding the permission due to the following reasons: