Punjab & Haryana HC allows kidney swap between non-relatives, dismisses ‘technicalities’

Considering the absence of matching blood groups within their families, the patients and the prospective donors submitted an application for “swap transplantation” under the Transplantation of Human Organs and Tissues Act 1994, read with Transplantation of Human Organs and Tissues Rules 2014. The PGIMER’s authorisation committee, however, stated that swap transplantation was permissible only between near relatives as per the 2014 Rules.

Advocate Molly A Lakhanpal, appearing for the petitioners, submitted that the committee had nowhere suggested the swap was a commercial transaction. Thus, with the arrangement being purely humane, there was no reason why the committee should not have taken a practical approach, especially when there is no provision in law against such consideration, he further submitted.

Justice Vinod S Bhardwaj, on December 6, said, “A perusal of the Act of 1994 clearly shows that the objective of the Act is to provide for the regulation of the human organs or tissues for therapeutic purposes and prevention of commercial dealings. The long object and reasons of the Act show that the underlying legislative intent was to curb commercial dealings in human organs.”

Justice Bhardwaj further said, “Section 9 of the Act and Rule 7 of the Rules of 2014 contemplate the procedure as well as restrictions on removal and transplantation of human organs or tissues or both. Sub-section 3A stipulates a situation where the biological compatibility of two donors who had originally agreed to make donation of their organ in favour of a near relative is not matching and that such donated organ is compatible inter se, the same can be permitted by the authorization committee. The language of the aforesaid statutory provision clearly shows that swapping is permissible with the approval of the authorization committee where the donors had agreed to donate their organs to the recipient, who is their ‘near relative’, but the same cannot be effected on account of biological incompatibility, in case they can enter into a single agreement to donate and receive such human organ or tissue or both according to such biological compatibility. Hence, the act of swapping is not a prohibited act under the Transplantation of Human Organs and Tissues Act 1994 and the Rules of 2014 notified by the government of India.”

“Loss of human life should not be permitted merely at the altar of technicalities and more so when the possibility of commercial transaction in such swapping has been completely ruled out… The social family bonds, the social fabric and family structure in the Indian subcontinent is also required to be kept in consideration and such relatives from the family of the spouse cannot be isolated as completely distant or wholly unrelated,” the judge added.

The court thus set aside the PGIMER committee’s decision and allowed the kidney swap.