Altruism Very Much Present In Humans; Organ Donor’s Statement Regarding Donation Out Of Love For Recipient Must Be Taken At Its Face Value: Madras HC
|The Madras High Court said that the statement of an organ donor that he/she is making the donation out of love and affection for the recipient must be taken at its face value.
The Court was deciding a batch of writ petitions seeking direction to grant approval for Kidney transplantation.
A Single Bench of Justice G.R. Swaminathan observed, “Certain statements can be taken at their face value. That is why, I hold that the statement by a donor that he / she is making the donation out of love and affection for the recipient must be taken at its face value. Of course, this averment shall be rejected if there is definite material evidencing passing of consideration. Subject to there being no evidence that money or money's worth has changed hands, permission should be granted. … Altruism is very much present in human beings. Human beings in times of danger and calamity are known to save others even at the costs of their own lives.”
The Bench said that all religions proclaim that love and charity are the highest virtues and hundreds and thousands have given up their lives for larger and impersonal causes and hence, it is not necessary that selfish consideration should underlie all human endeavour.
Advocate M. Manivasagam appeared for the petitioners while Government Advocate K. Tippu Sulthan appeared for the respondents.
Brief Facts -
The petitioners were admitted for renal failure in the respondent hospital. They were undergoing regular dialysis and kidney transplantation was the only solution. Some persons came forward to donate their kidneys in favour of the corresponding petitioners. But the said donors who gave consent for the transplantation were not “near relatives”. Therefore, prior approval from the Authorisation Committee was statutorily required in each case. The hospital was hesitant to forward the papers to the Authorisation Committee for taking appropriate decision. In these circumstances, the writ petitions were filed before the High Court.
The High Court in view of the above facts noted, “Let us put ourselves in the shoes of the applicants. They can only assert that there is no commercial dealing. They cannot be called upon to prove the negative. Rule 17 provides for scrutiny of application. In case of doubt, explanation can be sought from the applicants and there can also be verification done through the officials of the Government. Too much of burden cannot be laid on the shoulders of the applicants. Unless there is definite material to establish that there are financial dealings involving the parties, permission ought not to be withheld or rejected.”
The Court added that if the donor states that out of love and affection, he/she is making the donation, in the absence of any credible reason, the averment should not be doubted and the Government must come out with definite guidelines in this regard, otherwise, the issue will be left to the arbitrary discretion of the Authorisation Committee.
“If the recipient is well placed and connected, the decision of the committee will swing in his favour. If the recipient is not all that influential, by passing a template order, permission can be rejected. One must take note of the fact that parliament never intended to rule out donation by non-near relatives. The parliamentary intent ought not to be frustrated by adopting a rigid approach. One need not take a cynical view that a non-near relative will not donate out of altruistic considerations”, it further emphasised.
The Court enunciated that it is the duty of the recipient to take care of the post operative requirements of the donor and the Transplantation of Human Organs and Tissues Act, 1994 only states that donation should not be actuated by commercial considerations.
“I am cognizant of the fact that there is exploitation of the poor and the disadvantaged. I intend to address this issue. … There is no bar in the Act for the recipient to cater to the post operative needs of the donor. … When the State of Kerala issued G.O.(MS) No.26/2018/H&FWD dated 15.2.2018 providing for compensation for altruistic donors, the Hon'ble Division Bench of the Kerala High Court in W.P.(C)No.8434 of 2018 dated 23.08.2018 upheld the same on the ground that the provision for compensation cannot be construed as commercial dealings in human organs. They merely cover the health expenses of the altruistic donor”, it also noted.
The Court said that the function of the Authorisation Committee is not to stop with scrutinizing the application and granting approval and hence, they have an obligation to ensure that the needs of the donor are met.
“A person donating kidney would require to be nutritiously fed. Health complications can arise in future. Section 2(k) of the Act which defines payment excludes defraying of certain expenditures from its purview. The recipient is obliged to defray and it is the duty of the Authorisation Committee to see to it that this obligation is discharged. Apart from taking medical insurance coverage in favour of the donor, a lump sum deposit shall be directed to be made to the credit of the Authorisation Committee. The committee shall issue directions for crediting a fixed sum every month in the bank account of the donor for a period of three years. This arrangement will ensure direct transfer of benefit to the donors. Thus, the physical and medical needs of the donor will be met for a certain period. The individual details can be worked out on a case to case basis by the Authorisation Committee. No straight jacket formula can be laid down. Making of such provision by the Authorisation Committee will not any way run counter to the statutory scheme of the Act”, it concluded.
Accordingly, the High Court disposed of the writ petitions and permitted the petitioners to submit applications directly before the Authorisation Committee.
Cause Title- Sudha Mathesan & Anr. v. The Authorisation Committee (Transplantation) & Anr. (Neutral Citation: 2024:MHC:2112)
Appearance:
Petitioners: Advocate M. Manivasagam
Respondents: Govt. Advocate K. Tippu Sulthan and Advocate Elizabeth Seshadri.