Exploitation Not To Be Presumed By Donor’s Disadvantaged Social Status: Kerala HC Directs DLAC To Reconsider Allowing Organ Donation By A Driver’s Wife

DLAC had stated that when the donor is a person from a disadvantaged class of society, it has to be more cautious to ensure that she is not being exploited. It had further stated that there were inconsistencies in the statements of her husband and her brother.

However, considering the same statements, a bench of Justice Devan Ramachandran was of the opinion that it could not find any reason why the versions of the parties were found to be “wholly inconsistent”. Therefore, the bench observed, “I am guided to the impression that ‘DLAC’ appears to have taken the afore view being swayed by the social status of the donor, who appear to be from a disadvantaged one; and thus somehow has presumed that she appears to be subjected to exploitation by the 1st petitioner (employer). However, the impugned Ext.P12 report cannot add any force to this presumption or assumption - as the case may be; and am, therefore, of the firm view that ‘DLAC’ must reconsider the matter, based on the statements that have already been recorded, but adverting specifically to the “Certificate of Altruism”, which the petitioners are stated to have produced before them, from the competent Police Authority”. The Court considered the certificate to be necessary because in the report there was not any mention, however in the court during the arguments, the counsel had produced the same.

“I cannot, therefore, fathom how the ‘DLAC’ could find that they could not ‘trace out any altruism on the part of the donor, especially a lady’ (sic)”, the bench further noted.

Advocate C.R. Suresh Kumar appeared for the petitioners and GP Sunil Kumar Kuriakose appeared for the respondents.

The husband of the petitioner no. 2 ( donor) worked as a Driver on call with the 1st petitioner-donee (employer). He had submitted that since he was unable to donate his organ as he met with an accident, therefore his wife was willing to donate.

As per the averments made, the lady was donating her organ to the employer out of affection and altruism and not for any confutative reason. Since as per the facts stated, the employer had helped them both to find a shelter, with whom the husband of the donor is serving as a driver since 2006. It was further put forth that she and her husband were not legally wedded, but were living as husband and wife for more than 16 years now, since their relationship was not approved by their families.

Therefore, considering the facts and circumstances, the bench allowed the writ petition while setting aside the impugned findings of the DLAC, with a consequential direction to reconsider the matter adverting to the ‘Certificate of Altruism’ as soon as possible, but not later than one week from the date of receipt of a copy of the judgment.

Cause Title: Ramachandran P. v. State of Kerala [Neutral Citation: 2023/KER/68919]

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