KALADI ABDUL ASEES Vs. STATE OF KERALA

JUDGEMENT

(1.) The first petitioner is suffering from kidney disease and undergoing treatment at the Rajagiri Hospital, Aluva, Ernakulam. He was advised to undergo renal transplantation immediately. Allegedly, the kidneys of his close relatives are not suitable for transplantation and hence, he could not do renal transplantation to save his life. While so, the second petitioner has volunteered to donate her organ for conducting a transplantation surgery. Since they are not close relatives, they submitted a joint application under Sec. 9(5) of the Transplantation of Human Organs and Tissues Act, 1994 (for short, "the Act"), which was rejected as per Ext.P11 by the District Level Organ Transplantation Authorization Committee (DLAC) under the Act, suspecting commercial dealing behind the human organ donation. Though the matter was taken in appeal, the appellate authority upheld the rejection by Ext.P14 order. Aggrieved by this, the petitioners have come up before this Court.

(2.) The second respondent filed a counter affidavit, contending that the DLAC was convened on 12/9/2024 to evaluate the application for the proposed kidney transplantation; and during interaction, it was found that the statements regarding the relationship were contradictory. Hence, the DLAC requested the police authorities to enquire into the matter, pursuant to which Ext.R2(a) report dtd. 17/9/2024 was issued, concluding that the donor had agreed to organ donation not out of altruism, but for monetary gain. Accordingly, the DLAC rejected the application as per Ext.P11, finding that the application did not meet legal requirements for approval under the Act and since the mandatory condition of voluntariness and altruism has not been satisfied, the presence of financial inducement has been confirmed. The appeal against Ext.P11 order was considered by the State Level Technical Committee (for short, "the committee") and found that there is no evidence to substantiate that there exists a strong emotional connection between the donor and the recipient and the donor could not clearly cite any event or circumstance that prompted her to perform the altruistic act for the recipient. The committee also found that the story of a long association between the families of the proposed donor and the recipient is a fabricated one considering the contradicting facts stated by the applicants and their failure to produce supporting documents to prove their claims. Also, finding that the donor, who is a woman belonging to a low-income group, found to be suffering from financial challenges and she expressed depressive ideas of hopelessness and worthlessness and her suicide ideas for not having children, the committee opined that she needs urgent medical attention and professional psychiatric support. According to the second respondent, the rejection by the DLAC was upheld on appeal, finding that the appeal lacks both merit and substance; and hence, it does not require any interference by this Court.

(3.) The petitioners filed a reply affidavit, reiterating that the petitioners are known to each other for several years as the donor was a neighbour of the recipient in Paravannur at Malappuram District. It is pointed out that the averment that their families maintained a good relationship ever since was not disputed by the Assistant Commissioner of Police, Kunnamkulam, who issued Ext.R2(a) report. It is further pointed out that there is no evidence of commercial dealing or middlemen during the enquiry conducted by the police and the element of financial dealing is only a suspicion. The petitioners denied the conclusion drawn in Ext.R2(a) certificate by the Dy.S.P. that the donor's willingness to donate the organ may have been motivated by the financial benefit. According to them, the police have no authority to arrive at such a finding; and the DLAC is the authority to consider the genuineness of the decision of organ donation, which should be an independent decision; and the affinity between the parties could not be proved through documents and evidence; and the DLAC ought to have considered the affidavits filed by the petitioners in this regard. The concern about the stress of the donor is without any basis and the donation of the organ will be made only after conducting a detailed checkup and there is no contradiction in the evidence of the petitioners. According to them, the reason that the donor is a woman belonging to lower income is not a ground to reject the application and there is no reason to disbelieve the story narrated by the petitioners regarding the relationship between them.