The Punjab and Haryana High Court has allowed the swapping of organs between the parties who do not fall under the definition of “near relatives” given in the Transplantation of Human Organs and Tissues Act, 1994 (“the Act”). A single-judge bench comprising Hon’ble Justice Vinod S. Bhardwaj noted that Loss of human life should not be permitted when the possibility of commercial transaction in such swapping has been completely ruled out.
Brief Facts:
The brief facts of the case are that Petitioner No.1 and Petitioner No.2 were suffering from various ailments of the kidneys. They approached PGIMER, Chandigarh (Respondent No.2), where they were advised to undergo kidney transplantation. Petitioner no. 3, the wife of Petitioner no.1, and Petitioner no. 4, the mother-in-law of Petitioner no. 1, out of natural love and affection, voluntarily agreed to donate their kidneys to Petitioner no. 1 and 2. However, the authorization committee of the PGIMER, Chandigarh, disapproved the case of the Petitioners by citing Rule 7(4) of “The Transplantation of Human Organs and Tissues Rules, 2014”. This rule states that the donation of organs shall be permissible only from “near relatives” of the swap relative. In case organs are transplanted between unrelated persons, the same cannot be allowed.
Contentions of the Petitioner:
The learned Counsel of the Petitioner submitted that the Authorising Committee had failed to consider the object of the act. The Counsel had relied upon the case of Kuldeep Singh and Others Vs. State of Tamil Nadu reported as (2005) 11 SCC 122 where the Supreme Court noted that “the object of the Act is 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”. She further argued that the Authorisation Committee had nowhere suggested or alleged that the swap between the Petitioners herein is a commercial transaction. Therefore, there was no reason not to take a practical approach, especially when there is no provision in the law against such consideration. According to the Counsel, a rigid and dogmatic approach in matters related to the transplantation of human organs and tissues cannot be adopted or promoted. The larger public's cause and concern must be considered in such issues.
Contentions of the Respondent:
The learned Counsel of the Respondent averred that there is no illegality, perversity, or impropriety in the order passed by the Authorization Committee and the Committee had acted within the strict compliance of the statute.
Observation of the Court
This Hon’ble Court, after the perusal of the act, observed that the underlying legislative intent was to curb commercial dealings in human organs. Further, after the perusal of the definition of “near relative” due to which the Authorising Committee declined the request, this Court noted that “once the spouse is recognized as a relative within the definition under Section 2(i), the object of Section 9 (3)(A) should not be permitted to be defeated merely by adopting such rigid, dogmatic and stigmatic interpretation and not to include people who get related by matrimony and would have same love and affection”. Therefore, this Court had adopted the pragmatic approach for preventing a Loss of human life merely at the altar of technicalities and more so when the possibility of commercial transaction in such swapping has been completely ruled out.
Further, it was held that the test for the Court is to rule out the possibility of a Commercial Transaction and satisfy the regulatory requirement. It was apparent to the Court from the response filed by the Respondent that there is no suggestion or reference that such a transaction is being executed due to a commercial transaction or for an object which runs contrary to the Scheme of the Act and the Rules framed therein.
The decision of the Court:
After considering the act's object, the Court granted permission to the Petitioners to swap their kidneys and set aside the order passed by the Authorising Committee.
Case Title: Ajay Mittal and others vs Union of India and another
Coram: Hon’ble Justice Vinod S. Bhardwaj
Case no.: CWP NO.26361 OF 2022
Advocate for the Petitioners: Mr. Molly A. Lakhanpal
Advocate for the Respondents: Mr. Satya Pal Jain and Mr. Sudhir Nar
Read Judgment ;
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