JILLET Vs. STATE OF KERALA

JUDGEMENT

(1.) The first petitioner is a chronic kidney patient, advised to undergo renal transplantation surgery to save his life. The second petitioner has volunteered to donate his organ for conducting the transplantation surgery. As the petitioners are not near relatives, they submitted a joint application, as provided under 9(5) of the Transplantation of Human Organs and Tissues Act, 1994 (the Act for short). The District Level Organ Transplantation Authorisation Committee under the Act rejected the application, suspecting commercial dealing behind the human organ donation and the Appellate Authority upheld the rejection. Hence, this writ petition.

(2.) Heard Adv.C.A.Chacko for the petitioners, Government Pleader Adv.Deepa Narayanan for respondents 1 to 4 and Adv.Thomas J.Anakkallunkal for the 5threspondent.

(3.) The writ petition calls for a decision on the correctness of the decision taken by the authorities under the Act, as to the genuineness or otherwise of the altruistic organ donation. The issue has to be decided bearing in mind the fact that the Act is intended to strike a balance between two conflicting needs, viz; the need to prohibit commercial dealings in human organs and the need to bring in a legislation, providing for removal of organs from persons suffering from brain stem death and for altruistic donation by living persons. Sec. 3 of the Act deals with the authority for removal of human organs or tissues or both. By virtue of Sub Sec. (1) of Sec. 3, any donor may, in such manner and subject to such conditions as may be prescribed, before his death, authorise the removal of any organ or tissue or both of his body for therapeutic purposes. The restrictions on removal and transplantation of human organs is contained in Sec. 9, the relevant portion of which reads as under;