Whether organ donor is bound to obtain permission of her estranged father for organ donation?

However, in so far as the second requirement insisted by the respondent no. 1 to produce the consent from the father of the petitioner no. 2, it is noted that the petitioner no. 2 had already placed on record an affidavit filed by her husband which satisfied the requirement of Rule 22 of the Rules of 2014. Therefore the impugned action of the respondent no. 1 requiring the petitioner no. 2 to furnish the consent from her estranged father tantamount to imposing an onerous condition which cannot perhaps be complied. Under the circumstances, the requirement insisted by the respondent no. 1 to produce the consent of the father of the petitioner no. 2 for the intended transplantation is liable to be set aside.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Writ Petition No. 8148 of 2020 (GM-RES)

Decided On: 10.07.2020

 Shailaja Madathil Valappil   Vs.  The State Level Authorization Committee for Transplantation of Human Organs and Ors.

Hon'ble Judges/Coram:

Nataraj Rangaswamy, J.

Citation:  MANU/KA/2474/2020

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Whether ‘Mentally challenged’ man can donate kidney to sibling?

Petitioner no. 3 is adjudged as mentally challenged and, in view of section 9(1-C) there is prohibition for removal of organs or tissues. Section 9(1-C) of the Act reads thus:

9. Restrictions on removal and transplantation of [human organs or tissues or both]

(1-C) No human organs or tissues or both shall be removed from the body of a mentally challenged person before his death for the purpose of transplantation.

Explanation - For the purpose of this subsection,-

(i) the expression “mentally challenged person” includes a person with mental illness or mental retardation, as the case may be;

(ii) the expression “mental illness” includes dementia, schizophrenia and such other mental condition that makes a person intellectually disabled;

(iii) the expression “mental retardation” shall have the same meaning as assigned to it in clause(r) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)]

As has been recorded above, the principles in Common Law jurisdiction based upon “best interest test” cannot be made applicable in view of specific provisions in Transplantation of Human Organs and Tissues Act, 1994. Section 2(f) of the Act defines donor as the person not less than eighteen years of age, who voluntarily authorises removal of his organ or tissues. In the instant matter, petitioner no. 3 is not an individual who is in a position to voluntarily authorise removal of his organ or tissues. Apart from this, section 9(1-C) puts bar on removal of human organ or tissues or both from body of a mentally challenged person. In the instant matter, petitioner no. 3 is adjudged as suffering from mental retardation and he is reported to be a person not capable of making decision for himself. We, with a view to find out whether petitioner no. 3 has a minimum level of understanding, interviewed him by calling him in chamber in presence of the counsel of both the sides. We have noticed that petitioner no. 3 even was not in a position to understand the questions put to him and is incapable of understanding the consequences of his act. His decision making power is severely impaired and we do not doubt the opinion of the Consultant Psychiatrist.

20. The restriction on removal and transplantation of human organs or tissues or both contained in sub-section (1-C) of section 9 of the Act in respect of mentally challenged person is an absolute prohibition. The Statutory provision is couched in negative language and as such shall have to be construed mandatory. In this connection reference can be made to the judgment of the Honourable Supreme Court in the matter of Vijay Narayan Thatte v. State of Maharashtra reported in(2009) 9 SCC 92 The proviso to section 6 of the Land Acquisition Act which puts prohibition for making a declaration under section 6 after expiry of one year from the date of publication of notification was a matter of consideration before the Court. The Honourable Supreme Court recorded that since the statute is couched in negative language, it is referred as peremptory and mandatory in nature. While interpreting the negative prohibition, in paragraphs 5 to 16 of the judgment, the Honourable Supreme Court has observed thus:

“5. As stated by Crawford:

“263. Affirmative, negative, prohibitory and exclusive words.- Prohibitive or negative words can rarely, if ever, be directory…. And this is so, even though the statute provides no penalty for disobedience.”

(See Crawford: Statutory Construction, p. 523; see also in this connectionHaridwar Singh v. Bagun Sumbrui, SCC p. 895, para 13, Lachmi Narain v. Union of India; Mannalal Khetan v. Kedar Nath Khetan).
In the High Court of Bombay at Aurangabad

(Before R.M Borde and Vibha Kankanwadi, JJ.)

Ganpatrao S/o Sambhajirao Pawar. v. State of Maharashtra 

Writ Petition No. 13918 of 2017

Decided on December 21, 2017,
Citation: 2017 SCC OnLine Bom 9419, 

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Whether authorization committee should call report of police in routine matter in case of organ donation?

We have considered the matter and in our view, the submission is correct, but not only so. The reference to the Rules would show that it is the Authorisation Committee that has to take the decision. It has to devise ways and means to come to those findings. In order to reduce bureaucratic delay and red-tapism, they have to directly take decisions and not delegated to others. This goes a long way in reducing the time taken to take a decision as they are dealing with a situation where a person is virtually on deathbed and time is of essence.

7. But we do not agree to the submission that under no circumstances, police help can be taken. If we refer to various sub rules, different considerations have to be enquired into. But, normally the Authorisation Committee devises ways and means by way of affidavits and certifications that those satisfactions are arrived at. Police can only be or rather police should only be involved, if the Authorisation Committee doubts the genuineness of the claims or bona fides of the persons or genuineness and bona fides of the documents produced and not otherwise. Verification through police as a routine manner in all cases should generally be avoided. That would save time and harassment to already harassed people. The prime consideration being that, there is no commercialisation in matters of organ donation. The organization committee can surely discover those by various certificates and documents that it requires to be filed before decisions are taken.

IN THE HIGH COURT OF KERALA

W.A. Nos. 560 and 561 of 2017

Decided On: 22.03.2017

Kunhi Mohammed K. and Ors. Vs. District Level Authorization Committee and Ors.

Hon'ble Judges/Coram:

Navaniti Prasad Singh, C.J. and Antony Dominic, J.

Citation:AIR 2017 Kerala 147

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