(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus, to direct the Respondent no.2 to to grant approval for kidney transplantation from the 2nd petitioner to the 1st petitioner and to do the transplantation by the 4th respondent/hospital on priority basis in accordance with law.)
1. Mr.R.Parthiban, learned Counsel for State of TN, takes notice for the respondents 1 to 3.
2. This Writ Petition is taken up for final hearing at the time of admission with the consent of the learned counsel for the petitioner and learned Counsel for State of TN for the respondents 1 to 3.
3. This Writ Petition has been filed for a Mandamus to direct the second respondent to grant approval for kidney transplantation from the second petitioner to the first petitioner and to do the transplantation by the fourth respondent/hospital on priority basis in accordance with law.
4. It appears that earlier, the third respondent/Revenue Divisional Officer, in his proceedings dated 19.06.2026, bearing reference in O.Mu.2459/2026 Aa2 had rejected the request of the first petitioner for transplantation of kidney of the second petitioner to the first petitioner on the ground that they were well acquiantance with each other and friends and that they were not relatives. Relevant portion of the order of the third respondent reads as under:
5. As far as the transplantation of the second respondent’s kidney for being harvested into the first petitioner is concerned, the same is governed by Rule 7(3) of the Transplantation of Human Organs and Tissues Rules, 2014, framed under Section 24 of the Transplantation of Human Organs and Tissues Act, 1994. The Rule 7(3) of the said Rules reads as under:
“Rule 7 - Authorisation Committee
(1) ...
(2) ...
(3) When the proposed donor and the recipient are not near relatives, the Authorisation Committee shall,-
(i) evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person;
(ii) prepare an explanation of the link between them and the circumstances which led to the offer being made;
(iii) examine the reasons why the donor wishes to donate;
(iv) examine the documentary evidence of the link, e.g. proof that they have lived together, etc.;
(v) examine old photographs showing the donor and the recipient together;
(vi) evaluate that there is no middleman or tout involved;
(vii) evaluate that financial status of the donor and the recipient by asking them to give appropriate evidence of their vocation and income for the previous three financial years and any gross disparity between the status of the two must be evaluated in the backdrop of the objective of preventing commercial dealing;
(viii) ensure that the donor is not a drug addict;
(ix) ensure that the near relative or if near relative is not available, any adult person related to donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness about his or her intention to donate an organ or tissue, the authenticity of the link between the donor and the recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of.”
6. A reference has been made by the learned Special Government Pleader for the respondents 1 to 3 to a detailed order passed by this Court in in W.P.No. 13918 of 2024 and batch, dated 30.05.2024 in the case of Sudha Mathesan and another vs. The Authorisation Committee (Transplantation) and another, wherein in para 27, it has held as under:
“27.The function of the Authorisation Committee is not to stop with scrutinizing the application and granting approval. They have an obligation to ensure that the needs of the donor are met. A person donating kidney would require to be nutritiously fed. Health complications can arise in future. Section 2(k) of the Act which defines payment excludes defraying of certain expenditures from its purview. The recipient is obliged to defray and it is the duty of the Authorisation Committee to see to it that this obligation is discharged. Apart from taking medical insurance coverage in favour of the donor, a lump sum deposit shall be directed to be made to the credit of the Authorisation Committee. The committee shall issue directions for crediting a fixed sum every month in the bank account of the donor for a period of three years. This arrangement will ensure direct transfer of benefit to the donors. Thus, the physical and medical needs of the donor will be met for a certain period. The individual details can be worked out on a case to case basis by the Authorisation Committee. No straight jacket formula can be laid down. Making of such provision by the Authorisation Committee will not any way run counter to the statutory scheme of the Act.”
7. Further, a reference has been made to Section 2(k) of the said Act, which reads as under:
“(2)(k) “payment” means payment in money or money’s worth but does not include any payment for defraying or reimbursing—
(i) the cost of removing, transporting or preserving the human organ or tissue or both to be supplied; or
(ii) any expenses or loss of earnings incurred by a person so far as reasonably and directly attributable to his supplying any human organ from his body;”
8. Balancing the interest of the donor and donee (recipient), taking note of the scheme under the Act and Rules made thereunder and particularly, in the light of the definition of the payment in Section 2(k) of the said Act, I direct the second respondent to take immediate steps for passing appropriate orders in line with the para 27 of the above order in W.P.No.13918 of 2024 and batch, dated 30.05.2024, which is extracted above.
9. Considering the fact that the first petitioner is a kidney patient, who is waiting for kidney transplantation and taking note of the urgency for the transplantation, this exercise shall be completed as expeditiously as possible preferably within a period of two (2) weeks from today.
10. This Writ Petition is disposed of, with the above observations. No costs. Consequently, connected miscellaneous petition is closed.
