For the reasons stated above, this Court comes to the following conclusions:
(1) Sub-section (3A) (a) and (b) of Section 9 of the Transplantation of Human Organs and Tissues Act, 1994 to the extent it permits Swap Transplants only in cases of near relatives and curtails the powers of Authorisation Committees to approve such non-near relative transplants even for special reasons as contemplated in Section 9(3), have to be read down, to be in consonance with Section 9(3).
(2) It is therefore held that Swap Transplants will be permissible even if each pair of donor-recipients are not near relatives, provided there exists special reason for the donor to donate his/her organ as contemplated in Section 9(3) and the Authorisation Committee gives prior approval for the swap transplants after scrutinising the applications on the parameters provided in Rule 7(3) of the Transplantation of Human Organs and Tissues Rules, 2014.
(3) The provision under the head ‘Swap Donation’ contained in the Guidelines for Altruistic and Exchange Donation framed by the Government of Kerala, Health and Family Welfare Department, as per G.O.(MS) No. 26/2018/H&FWD dated 15.02.2018, to the extent it permits Swap Donations only between near relatives, will be inoperative, as it goes against the provisions of Section 9(3) of the Act, 1994 as stated hereinabove. {Para 17}
In the High Court of Kerala at Ernakulam
(Before N. Nagaresh, J.)
Moideenkuty Vs District Level Authorisation Committee
WP(C) No. 23509 of 2021
Decided on November 11, 2021
Citation: 2021 SCC OnLine Ker 4315
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