In what could script new rules for organ donation between distant relatives,the Delhi High Court on Tuesday said that love and affection between the donor and recipient held top priority in such cases and a request could not be turned down simply because a family member had not stepped forward.
Justice Vipin Sanghi made these observations while adjudicating a petition by Parveen Begum who was in dire need of a kidney. The Sir Ganga Ram Hospitals authorisation committee had turned down her request to receive the organ from her niece.
Her case was first reported by Newsline on April 24 when her family moved court against the hospitals decision.
Justice Sanghi said that a hospitals authorisation committee,which examines cases of organ donation between distant relatives,could reject such a request only when there is ground to apprehend that the donation involved commercial transaction.
Merely because in a given case,a near relative may not be willing to donate his or her organ/tissue to the recipient,it is not ground to either raise suspicion of a commercial transaction,or to reject the case altogether. It is not the mandate of the authorisation committee to compel or drive the near relative of the recipient to donate their organ/tissue to the recipient, he said.
Justice Sanghi opted to interpret the term payment under the Transplantation of Human Organ and Tissues Act and noted that this would not cover a monetary transaction between a donor and recipient in the past when such a transplant was not required.
It refers to a monetary payment made by a donor on his or her behalf to a recipient as consideration for the donation of an organ. It does not refer to a contribution,gift or monetary support made or granted gratuitously in the past,when even the need for organ transplant was not in existence. The test is,whether the said payment would not have been made but for the donor agreeing to donate his or her organ, he said.
Justice Sanghi noted that financial disparity between the donor and the recipient will also not come in the way of such donations unless the committee has something material on record indicating involvement of commercial elements.
Going a step further,he said that a sense of love,affection and gratitude,once established,provided the impetus to donate ones organ,and any financial help by the recipients family in future could not lead to a conclusion that a monetary deal was struck between them at the time of the donation.
After examining the records in Parveen Begums case,the court found infirmities in the committees decision,quashed it and ordered the committee to give formal approval for the donation in two days.
Justice Sanghi underlined that there were photographs on record to show the family pedigree proving their relationship; various reports from authorities prepared after local examination at Meerut; photographs taken 30 years ago and a statement from the niece.
The niece had stated that her aunt and her family had helped her financially and also supported her family otherwise when they were in penury and that she now wished to help her,out of gratitude,by donating one of her kidneys.