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Kerala High Court upholds guidelines for organ transplantation [Read Judgment]

A Division Bench of the Kerala High Court comprising of Chief Justice Antony Dominic and Justice Dama Seshadri Naidu recently upheld the validity of guidelines for organ transplantation introduced by the Health & Family Welfare Department of the State of Kerala.

The petition filed by Mohamed Abdul Nassar through Advocates C. M. Mohammed Iquabal and N. S. Soumya Mol challenged the provision dealing with the compensation for altruistic donor, which reads as under:

Compensation for altruistic donor
(1) All medical expenses incurred for donor evaluation and donor surgery must be borne by the recipients. The donor also should be compensated for loss of income which will be limited to Rs.50,000/- (Rupees Fifty thousand only) per month for three months. The donor will be provided with free health insurance during his/her entire life time under any of the Health Insurance Scheme of Government.

(2) The recipient who receive organ from an altruistic donor or a swap donor must pay organ utilization fee to KNOS @ Rs.2,00,000/- (Rupees Two lakh only) for covering health expenses of altruistic donor.

The petitioner contended that these provisions are against the spirit of the provisions of the Transplantation of Human Organs Act, 1994 and in particular, Section 19 which prohibits commercial dealing in human organs. It was further contended that if these provisions are implemented, that will only result in encouraging commercial dealings in human organs which is punishable.

The Court noted that these provisions only provide that medical expenses incurred for donor evaluation and donor surgery must be borne by the recipients and that the donor should be compensated for loss of income for three months. The provision further states that the donor will be provided with free health insurance during his entire life time under any of the health insurance schemes of the Government. Similarly, sub clause (2) requires the recipient to pay organ utilisation fee of Rs.2 lakhs for covering the health expenses of the altruistic donor.

The Court held that, “The contention of the learned counsel that the aforesaid provision of the guidelines would violate the Transplantation of Human Organs Act, 1994, cannot be accepted.These provisions are intended, as is clear from the provisions itself, to take care of the future welfare of the donor and these provisions cannot be construed as one helping commercial dealings in human organs…We do not find any illegality for interference and the writ petition is dismissed.”

Read the judgment below:

Transplantation Judgment Kerala HC-watermark (1)

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