MOHAMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner challenges Ext. P16, an order passed by the second respondent rejecting the request of the petitioners for transplanting kidney. The recipient as well as the donor are the petitioners. Learned counsel for petitioners relied upon Ext. P1 to indicate that when the authorities have confirmed that the donor had offered to donate his kidney on account of his free will without any compulsion, reward or consideration, there was no reason for the second respondent to have taken a different finding in this regard. Ext. P9 is an affidavit filed by the donor and his wife inter alia indicating that they do not require any consideration and there is no commercial interest in the matter. The said affidavit is notarized as well.

(2.) While adjudicating on an issue relating to transplantation of organs, the authority has to consider all these aspects which is apparently lacking in Ext. P16. In fact, the only question to be looked into on the basis of the relevant rules is whether it is a sale of organs. When materials are available on record to indicate that there is no commercial interest between the parties, the authority concerned should not insist on further proof regarding the same.

(3.) Organ transplantation has become a common feature on account of large number of cases being reported which affects various organs of the human body and kidney transplantation has also become a common feature on account of kidney malfunctioning. Therefore, Government has to look into the matter with a positive approach and if the parties themselves come before the authorities concerned and submit that they have no commercial interest in the matter, the mode of proof should be in such a fashion to promote transplantation of human organs. Only thing is, authorities concerned will have to follow a statutory mandate, but that should not be used for the purpose of denying the benefit which is conferred on the parties under the statute.