MANORANJAN ROUT Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is the second journey of the petitioner to this Court through this writ petition praying to quash Annexure -4, the letter dated 11.9.2009 intimating the petitioner that the appeal preferred by him before the appellate authority for obtaining N.O.C. for receiving kidney from proposed donor Bidyut Kumar Ray has been rejected on the ground of non -establishment of any emotional bond or relationship between the donor and the donee and to direct the Authorization Committee to issue No -objection Certificate in favour of petitioner No. 1 to receive one Kidney from petitioner No. 2.

(2.) FACTS of the case are that petitioner No. 1 who is serving as Chief Medical Officer, Ispat Hospital, M.E.C.O.N., Ranchi suffered from End Stage Renal Disease and was initially treated at Appollo Hospital which advised him to go for transplantation of one Kidney. Ultimately his department referred him to Kalinga Hospital Limited which is its referral hospital which also advised him to go for early transplantation of one Kidney. As the blood group of his near relatives like wife and other family members who were willing to donate kidney did not match, the petitioner approached his other relatives upon which petitioner No. 2 who is his father's sister's son whose blood group fortunately matched with that of the petitioner No. 1 volunteered to donate one kidney. Thereafter, both the petitioners made a joint application to the Authorization Committee through Kalinga Hospital (P) Ltd. Where petitioner No. 1 is under treatment for issue of N.O.C. The Authorization Committee asked the petitioner to produce some further documents which, it is said, the petitioner did. He also submitted documents to show that the annual income of the alleged donor is more than Rs. 2,00,000.00 per annum and therefore, there was no commercial transaction in the proposed donation of the kidney. He also produced old photographs to prove the fact of near relationship of petitioner No. 2 with the family of petitioner No. 1. Even then, the Committee refused to grant the N.O.C. in question which was intimated by the Director, Medical Education & Training, Orissa to Kalinga Hospital Pvt. Ltd. by letter dated 11.5.2009. Challenging the aforesaid action of the Authorization Committee, the petitioner filed W.P. (C) No. 11750 of 2009 in this Court and by order dated 12.8.2009 this Court considering all aspects of the matter and the order passed in a similar case (W.P. (C) No. 7950/2009) disposed of the earlier writ petition with the following direction:

(3.) BEFORE proceeding to consider the challenge made in this writ petition, it is necessary to know as to the reason for enactment of the Transplantation of Human Organs Act, 1994. According to the Preamble, the Act was enacted to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs and for matters Connected therewith or incidental thereto. Section 9 of the Transplantation of Human Organs Act, 1994 deals with restrictions on removal and transplantation of human organs. Sub -section (3), no human organ removed from the body of a donor before his death shall be transplanted in to a recipient unless the donor is a near relative of the recipient. Sub -section (3) provides that if any donor authorizes the removal of any of his human organs before his death under sub -section (1) of Section 3 for transplantation into the body of such recipient not being a near relative as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the Authorization Committee. A conjoint reading of the aforesaid two sub -sections would go to show that not only a human organ removed from the body of a donor before his death can be transplanted into the body of a near relative but also such organ removed from the body of a donor can be transplanted to the body of a recipient who is not a near relative of the donor by reason of affection or attachment towards the recipient or for any other special reasons of course with the prior approval of the Authorization Committee. There is no provision in the Act which prohibits a person, who is not a 'near relative' from donating a kidney for transplantation. In this case when the blood group of the near relatives did not match, petitioner No. 2 volunteered to donate his kidney out of affection and attachment with the petitioner.