The writ petitioner is the proposed recipient of the kidney transplantation from the donor Mrs.Maya Vinod. Both of them are the residents of Kerala. The petitioner, who is a medical practitioner practicing in Kannur Town and having renal failure, states that none of his relatives are able to provide kidney due to various scientific reasons, including different blood group, etc. and ultimately, the said Mrs.Maya Vinod has accepted to donate her one kidney with the consent of her husband and she has also applied as per the provisions of the Transplantation of Human Organs Act, 1994 (for brevity, "the Act") and the Rules framed thereunder.
2. The said Act requires the approval of the Authorization Committee before any registered hospital can perform the transplant operation. Since both the petitioner/recipient as well as the donor belong to Kerala, the Central Zone Authorization Committee, Medical College, Kottayam, constituted as per the provisions of the Act and the Rules framed thereunder, has conducted elaborate enquiry by examining the said donor along with her husband and ultimately, the Authorization Committee, Medical College, Kottayam has given No Objection Certificate, the contents of which are as follows:
"The central Zone Authorization Committee, Medical College, Kottayam has considered the request for transplantation of Kidney of Smt.Maya Vinod, Female, 29 years, Jaya Sadanam, Madapally P.O., Changanasserry, Kottayam, Kerala State to Dr.M.Anoop, Male, 47 years "Lakshmi", Chinmaya College, Talap, Kannur-2 and has no objection for Kidney transplantation to be conducted at Kovai Medical Centre and Hospital Limited Avanasi Road, Coimbatore-14 or in any other Hospital in India in accordance with the provisions of Transplantation of Human Organs Act, 1994. The Photo of Donor & Recipient is affixed & attested below."
3. Since the parties desire to have the transplantation effected at Kovai Medical Centre and Hospital Limited at Coimbatore, as per the provisions of the Rules, the approval of the Authorization Committee of the State of Tamil Nadu is a mandatory requirement and therefore, an application was made to the second respondent which passed the impugned order as per the decision of the Committee dated 7.8.2009 rejecting the request of the petitioner for effecting Kidney transplantation for the reason "donor and spouse not aware of the post operative consequences and complications". The reason assigned by the second respondent is that the donor and her spouse being well-versed only in Malayalam were not able to understand the consequences of such operation because of the language problem.
4. As per
Section 9(6) of the Act, the Authorization Committee is empowered to conduct an enquiry after giving an opportunity to the applicant of being heard and for the reasons recorded is entitled to either reject or approve the application.
Section 9(6) of the Act is as follows:
"Section:9. Restrictions on removal and transplantation of human organs.-
(1) to (5) *** (6) If, after the inquiry and after giving an opportunity to the applicants of being heard, the Authorization Committee is satisfied that the applicants have not complied with the requirements of this Act and the rules made thereunder, it shall, for reasons to be recorded in writing, reject the application for approval."
5. Therefore, the question that is involved in this case is when the Authorization Committee in Kerala, before whom both the recipient and the donor have appeared, after conducting an enquiry as required under the statute has issued a No Objection Certificate, whether the Authorization Committee of the State of Tamil Nadu can have the same jurisdiction to examine once again the donor and the recipient by satisfying itself about the consequences?
6. Mr.Vijayanarayan, learned Senior Counsel appearing for the petitioner has brought to the notice of this Court a decision of the Andhra Pradesh High Court in Smt.Kamala Devi v. The Director of Medical Education and Chairman, Authorization Committee for Organ Transplantation, Hyderabad and another (W.P.No.5618 of 2009, order dated 30.3.2009), wherein the Andhra Pradesh High Court, while referring to the Rules framed under the Act, especially Rules 6-B and 6-C which are as follows:
"Rule.6-B: The State level committees shall be formed for the purpose of providing approval or no objection certificate to the respective donor and recipient to establish the legal and residential status as a domicile State. It is mandatory that if donor, recipient and place of transplantation are from different States, then the approval or "no-objection certificate" from the respective domicile State Government should be necessary. The institution where the transplant is to be undertaken, in such case the approval of Authorization Committee is mandatory.
Rule.6-C: The quorum of the Authorization Committee should be minimum four. However, quorum ought not to be considered as complete, without the participation of the Chairman. The presence of Secretary (Health) or nominee, and Director of Health Services or nominee is mandatory.", has opined that in cases where the place where the operation is to be conducted is another State and the donor and recipient belong to different State wherefrom the concerned Authorization Committees have given their consent, the Authorization Committee of the State where the operation is to take place is to satisfy only in respect of the requirement under
Section 10 of the Act. The operative portion of the order passed in that case is as follows:
"It appears that adequate attention was not paid for accurate and perfect drafting of the provision. Little more care would have presented the Rules in a clear and unambiguous form. Be that as it may, the intention underlying the provision is clear. Rule 6-B directs that where, a) the donor, b) the donee, and c) the institution, at which the transplantation is to take place, or in different States, the certification by the respective Authorization Committee is essential. For instance, the Authorization Committee of the State, in which the donor is residing, has to confine its certification, as to the bona fides and health conditions of that individual. So is the case with the State Committee, within whose jurisdiction the recipient resides. The task of the Committee, within whose jurisdiction the institution is locate; is limited to the verification of registration, under
Section 10 of the Act. The respective committees cannot take into account, the aspects, which do not fall in their ambit or scope."
7. Under
Section 10 of the Act, which is as follows, the major requirement which has to be satisfied by the Authorization Committee where the hospital for conducting operation is situated, is to find out as to whether the said hospital has been registered.
"Section:10. Registration of hospitals conducting the removal, storage or transplantation of human organs.-
(1) On and from the commencement of this Act,-
(a) no hospital, unless registered under this Act, shall conduct, or associate with, or help in, the removal, storage or transplantation of any human organ;
(b) no medical practitioner or any other person shall conduct, or cause to be conducted, or aid in conducting by himself or through any other person, any activity relating to the removal, storage or transplantation of any human organ at a place other than a place registered under this Act; and
(c) no place including a hospital registered under sub-section (1) of
section 15 shall be used or cause to be used by any person for the removal, storage or transplantation of any human organ except for therapeutic purposes.
(2) Notwithstanding anything contained in sub-section (1), the eyes or the ears may be removed at any place from the dead body of any donor, for therapeutic purposes, by a registered medical practitioner."
8. On the facts and circumstances of the present case, the Authorization Committee of the State of Kerala, after giving an opportunity to both the donor and the recipient and having satisfied that the donor and her spouse have understood about the consequences of such operation, has issued a No Objection Certificate. When that being the case, in the admitted situation that the hospital at Coimbatore wherein the operation is to be conducted is registered under the Act, I am of the considered view, as rightly held by the Andhra Pradesh High Court, that the second respondent cannot be expected to do the same exercise once again and that will amount duplication of work, which cannot be the intention of the law enacted.
9. Inasmuch as there is no doubt about the No Objection Certificate issued by the Authorization Committee, Kottayam which is in categoric terms and it is also stated that the Authorization Committee, Kottayam only after examining the donor along with her spouse has given such certificate, there is no reason to suspect about the said certificate and therefore, simply because the donor and her spouse were not aware of the language spoken in the State of Tamil Nadu and could not be explained about the consequences, cannot be a reason to brush aside the No Objection Certificate dated 23.7.2009 given by the Authorization Committee, Kottayam as per the statutory function in the guise of the second respondent performing its function once again.
10. Inasmuch as under
Section 10 of the Act it is not in dispute that the hospital at Coimbatore is registered under the Act, I am of the considered view that the reason assigned by the second respondent in rejecting the claim of the petitioner for the purpose of performing kidney transplantation operation is not sustainable.
In such view of the matter, the impugned order of the second respondent stands set aside holding that there is no jurisdiction on the part of the second respondent to repeat the statutory exercise which has already been carried out by the Authorization Committee, Kottayam. The writ petition stands allowed insofar as it relates to the petitioner and the respondents are directed to permit the petitioner to have the kidney transplantation to be carried out in the hospital of his choice stated above for which certificate dated 23.7.2009 has been granted as per the provisions of the Act by the Authorization Committee, Medical College, Kottayam. No costs. Consequently, M.P.Nos.1 and 2 of 2009 are closed.
sasi To:
1. The Secretary to Government State of Tamilnadu Department of Health Fort St.George, Chennai-600 009 Tamil Nadu.
2. The Chairman, Authorization Committee Directorate of Medical Education 162, Poonamalee High Road Kilpauk, Chennai 600 010