|Case Name||Moideen E.M v. State of Kerala|
|Citation||2017 (5) KHC 740|
|Court||High court of Kerala|
|Case Number||W.P (C). No. 33801 of 2017(A)|
|Bench||Justice K.Vinod Chandran|
|Acts referred||Transplantation of Human Organs and Tissues Act, 1994.|
|Relevant Sections||Section 19|
The writ petitions by 16 petitioners in the need of kidney transplant, seek the permission of the court to make Publication in the print media to call for altruistic donors from the public, to which it was alleged that there may not be exclusively said in the publication about the payment of arrangement but if it leads to such payment then it would defeat the provisions of law since it is prohibited under Transplantation of Human Organs and Tissues Act 1994.
Petitioners are renal complainants and doctors advised them to transplant their kidney. There were a total 17 of them seeking permission to publish in the print media to call for donors. One of the petitioners died meanwhile amounting to 16 petitions in total, among all the petitioners there are four petitioners in the age group of 20 to 30years and four are between 30 to 40years, the majority eight are above 45years and there is one petitioner who had one transplantation and is seeking another.
- Whether Section 19 of Transplantation of Human Organs and Tissues Act, 1994 prohibits the call of donors for organ transplantation through publications?
The learned counsel on behalf of the petitioners submitted that there is no prohibition in the Transplantation of Human Organs and Tissues Act for making publication in the print media. Section 19 of the act specifically prohibits publication inviting donors for consideration. The legislature recognized the fact that there will be donors who might want to donate their organs to help other humans and, in this petition, the petitioners are looking for such donations through print media publication.
The deceased donor transplant scheme of the state is not able to meet the rising number of patient’s demand for organs. Doctors suggest that a living donor is more advisable than from a cadaver. There is a need for generating awareness for organ transplants so that the number of people willing to donate will increase as it has already been noticed in the blood donation cases, and for that, the publication and media have to be involved. The petitioners also contended that the life of a living Donor is not at risk and he can still survive for 20 to 15 years.
Respondents stated that Kerala Network of Organ Sharing (KNOS) asserted that there can be no permission to the publication for the call of inviting organ donor since the society has a large number of poor families and this publication will lead to commercial arrangements between rich and poor, which will certainly result in exploitation of poor section, contrary to the provisions of the law. Permitting the publication will be a step towards overstepping the law, which in the present case may go against the law.
The new developments in the medical fields must have given many opportunities to the people who are impaired but relying on other men’s vital organs has opened a new possibility and at the same time deadly consequences. Organ transplantation not only reduces the life expectancy of the living donor but also impacts the donor psychologically; in this case, if it is a commercial transaction then the reason behind the donor’s sacrifice will be disturbed as it may no longer be a free will.
The statistics of kidney transplant in the period 2011-2017 in the various hospitals show that unrelated transplant is on the increase. Due to this, the deceased organ transplants have come down considerably; to 16, up to October of 2017, while it was 72 in 2016. Yet again while 605 patients in the waiting list of deceased organ transplantation died; in the period 2011-2017, the unrelated kidney donation was 1692. The statistics are alarming and disturbing insofar as an additional 1692 persons; the living donors, are put at risk medically.
It cannot be stated that out of two kidney one is a surplus as there are chances that medical complications may arise in the future to the living donor due to stress on the remaining organ. Guidelines issued by the World Health Organization (WHO) clearly states that the living Donor should be near relatives of the recipient’s and informed about the harm in the future which might be even reflected on the physiological behaviour of the donor.
Thus, jeopardizing the normal life of the donor, however in most of the cases, the donations might be provoked if the donor is poor and may approach the recipient with the motive of luring the patient ultimately reaching out to the monetary sale of organs. Publication for calling out donors altruistically will beat the provision of law as it cannot be ensured that there will be no commercial transaction, hence it should not be allowed.
The court has to notice the fact that there is an increase in the number of organ donations purely for altruistic motive, and the transplantation of human organs rules 1998 have described an elaborate procedure to make sure that there is no consideration passed, as the law specifically prohibits the sale of human organs.
Even in the case of deceased donor removal of organs is only permitted, if he has given his consent during his lifetime and never tried to revoke it. Whereas in the case of the living donor the transplant can be done only if the recipient is near relative and if not then the Authorization committee is to be concerned, whether to allow the transplantation or not and to make sure that there is no commercial transaction. Even in the case of unclaimed bodies, the Authority is approached. The lawmakers were aware of the misuse that can be done based on the consent of donors, therefore, they did not permit organ transplantation on the consent solely hence, the committee is directed to get involved. The prohibition on the publication is not for the exploitation of the patients but to protect the rights and to maintain harmony in the society in a civilized manner.
Risking the life of a person who is young or in the middle age by reducing his lifetime to 15 to 20 years is not a worthy argument if publications are published even without any explicit offer it cannot be prevented that when the donor contacts the recipient directly he will not demand consideration.
The equation addressed by the petitioner about blood donation and organ donation are two ends of the road. Blood donation, in permissible quantity, is replaced in 4 hours with no life risk to the donor whereas in organ transplantation there is more danger to the living donor.
However, when it comes to the case of generating awareness, deceased organ donation should be addressed whose benefits can be overwhelming without risking another man’s life. It cannot be prevented that publication will not lead to the transaction, even before the issue reaches the Authorization committee, there could be an arrangement arrived at already. Therefore, the publication cannot be permitted. The court concludes that only the authorized body like Kerala Network of Organ Sharing (KNOS) can make publications periodically to ensure that the procedure is maintained and the provision of law is not disturbed. It should also be made sure that the anonymity of the donor and the recipient is to be maintained. All the petitioners should get themselves to KNOS and whenever a matching donor is received they should be approached. And to help the living donors’ funds and charity should be maintained.
In the present petition, the major concern is about whether publication on the print media can be done or not to call for selfless donors. The court held that it is necessary to look at the petitioners with sympathy but at the same time do not tamper with the law which is ultimately made to protect humans and the society at large. If publication is allowed then the donor will contact the recipient directly which might lead to the commercial transaction as the donor is aware of the fact the recipient needs the organ, which might lure him to demand money in return of the organ to which the recipient might agree, ultimately defeating the law provisions. On the other hand, even if the donor is selfless and he contacts the recipient but later changes his mind or so, then the latter might force him to do so which will again be against the law as it will be coercion and not free will.
Decision of the court explicitly helped the petitioners as well as it acted under the said provision without overstepping the law.