Full Text
HIGH COURT OF DELHI
Date of Decision: 7th December, 2022
ADITI GOSWAMI ..... Petitioner
Through: Ms. Shyl Trehan and Mr. Vigesh Raj, Advocates. (M:7204236360)
Through: Mr. Vijay K. Sharma and Ms. Megha, Advocates for R-2 & 3.
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present petition has been filed by the Petitioner under Article 226 being aggrieved by the conduct of the Respondents in not processing her application for kidney transplant. By way of the present petition, the Petitioner / Recipient (hereinafter ‘Recipient’) seeks expeditious processing and disposal of her application for kidney transplant from the Donor, Mrs. Mani who is her Maternal Aunt/ Maasi (hereinafter `Donor’)
3. The background facts of the case are that the Recipient is an advocate who has graduated from Amity Law School, New Delhi in the year 2019. She is also enrolled with the Bar Council of Delhi from 2019. The case of the Recipient is that in March, 2021 she experienced facial puffiness, poor appetite and galactorrhoea due to which she consulted with Dr. Sandeep Mahajan in the Nephrology Department at AIIMS Hospital, New Delhi. Initially, she was prescribed oral medication for her medical condition which she continued to take till December, 2021. However, her health started to deteriorate in January, 2022 due to which she had to be admitted in Max Hospital, Saket- Respondent No.3 on 25th January, 2022. Upon further tests being conducted, the Recipient was diagnosed with Chronic Kidney Disease stage 5 / End Stage Renal Disease. Since then, the Recipient was required to undergo dialysis twice a week. From March- April, 2022, she was advised to undergo ‘K-free’ dialysis to ensure that the potassium and creatinine levels in her body remain under control. At that point, she was advised to undergo a kidney transplant. Currently she is on dialysis thrice a week.
4. She and her family, thereafter, explored the possibility of finding a donor from a ‘near relative’ to donate a kidney but it was not possible as all her near relatives were either unfit or unwilling to donate. However, her Maternal Aunt/ Maasi (hereinafter ‘Maasi / Donor’) purely on love and affection basis, agreed to donate one of her kidneys to the Recipient. In July, 2022, the Donor underwent tests for donating her kidney and was cleared for surgery by Max Hospital, Saket for transplant. An application dated 23rd September, 2022 in the requisite form was filed by the Recipient for kidney transplant. The following documents were attached to the application: i. DNA reports confirming the relationship between the Recipient with her mother & the Recipient’s mother with the Donor. ii. The details of the Petitioner’s near relatives as specified under the Act and their reason not to donate. iii. Family tree of the Petitioner’s family. iv. Affidavit of the Donor. v. Affidavit of the Petitioner’s maternal grandmother / Donor’s mother giving a ‘NOC’. vi. Form 3 and Form 11 as per Transplantation of Human Organs and Tissues Rule, 2014.
5. The said application was submitted to the concerned Authorisation Committee in Max Hospital, Saket- Respondent No.2. However, the Recipient did not receive any decision in writing from Respondent No.2. As per the Recipient, when enquiries were made, it was intimated by the Hospital via phone call that the application could not be processed due to lack of NOC from the husband of the Donor. According to the Petitioner, the Donor has been estranged from her husband for several years and she has been living separately for the last 20 years. Thus, according to the Recipient, her application deserves to be considered on merits without the NOC from her husband. It is the case of the Recipient that her health is deteriorating constantly and she is currently stated to be undergoing dialysis at least thrice a week. The prayers in the writ petition are: “In light of the above, the Petitioner humbly prays that this Hon'ble Court be pleased to: a) Direct the Respondent Nos. 2 and 3 to. not insist that NOC from estranged husband of Donor be procured; b) Direct that the application dated 23,09.2022 filed by the Petitioner to Respondent No. 3 be processed expeditiously and placed before the Authorisation Committee; c) Pass any other Order(s) that this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.”
6. The writ petition was first listed on 4th November, 2022. On the said date, a status report was sought from Respondent No.3 indicating the first impression gathered by the Authorisation Committee. The said status report dated 15th November, 2022 was considered by the Court on 23rd November, 2022, on which date the following order was passed:
7. Pursuant to the said order, the Recipient further placed further material including photographs, financial documents before the Authorisation Committee. The Authorisation Committee also heard the Donor, Donor’s son and her family and again considered the matter. It then placed its observations before the Court vide report dated 26th November, 2022. The said Report reads as under: “Report: The meeting of authorization committee is held on 26/11/2022 at 3 PM. In terms of the last meeting of Authorization Committee dt. 11/11/2022 the recipient has submitted some documents on 24th Nov. at 6 PM and Recipient, Donor son and donor father were interviewed by the committee and the observation of the committee is as under:
1) During the interview donor admitted and stated that she is the Masi of recipient and donating one of her kidney out of her own free will. Even the donor’s son Lakshay and Father Mr. Kuldeep Garg also interviewed.
2) Financial status of Donor: Donor admitted that she runs a small business of wool and fancy dress and manages the financial requirements of herself and her son whereas she was unable to produce GST statement saying that she files ITR every year.
3) Association: Both donor and recipient stated that donor recipient mother are in close association but they could not produce any of the relevant document except recipient wedding of 2013 where there were the marriage gathering. Also failed to produce whatapp/Facebook/SMS exchange between them. Donor, Recipient and Donor son admitted that they are living in close proximity and visit very often to each other.
4) Property: The Jaipur property document submitted by donor on record is incomplete as it is not signed by the Donor.
5) The ITR’s status: which has been submitted on record by the donor does not show very sound financial status and it transpired during the course of interview that donor’s son is a school drop out and incapable of taking independent decision. The Donor being the single parent burdened with responsibility of maintaining her child and at the same time looking after her business seems to be in a vulnerable position to donate if god forbids anything happen to him who would look after her son.
6) The recipient stated that her brother could not donate because he got married recently in last December and her sister working in US and could not travel to India for donation But both her brother and sister can be the prospective donor and could be evaluated for giving donations accordingly. The committee submits the above report to the Hon’ble court and the Hon’ble court may pass the suitable directions.”
8. The said report was considered by this Court on 29th November, 2022. On the said date, the Court also interacted with the Donor and also met the Recipient and her family.
9. Considering the concerns raised by the Authorization Committee, and the interaction that the Court had with the Donor, the Court deemed it appropriate to appoint Ms. Tara Narula, Advocate as a Local Commissioner to visit and interact with the Donor. The mandate of the Local Commissioner was as under:
10. Mr. Vijay Sharma, ld. Counsel submits that broadly the Authorisation Committee does not have any objection to the organ donation. However, some concerns were raised as to the financial status of the Donor. Since, the Donor is a single parent, looking after the business on her own, if any complication were to arise as a result of the surgery, in that eventuality there would be no one to look after the son of the Donor which makes the Donor a vulnerable person.
11. Ms. Shyel Trehan, ld. Counsel for the Recipient on the other hand submits that DNA reports have been submitted to establish that the Donor is the Maasi of the Recipient. Further, the various photos of the Donor, the Recipient and the Recipient’s family together from as far back as 1982, including photos from the Recipient’s wedding in 2013, have been submitted to the Authorisation Committee to prove the proximate relationship between the Donor and the Recipient. It is her further submission that the Donor is a financially independent women and merely because the Donor and Recipient come from different financial background, cannot be a valid ground to reject the application of the Recipient for kidney transplant.
12. Heard ld. Counsel for the parties and perused the record. Transplantation of human organs in India is governed and regulated by the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter ‘THOT Act’). Although the THOT Act, has been passed by the Indian parliament under Article 252 of the Constitution of India, presently it is applicable to all States and Union Territories, including Delhi, except for the States of Andhra Pradesh and Jammu and Kashmir. The THOT Act provides for the regulation of removal, storage and transplantation of human organs and tissues for therapeutic purposes and for the prevention of commercial dealings in human organs and tissues. Section 9(1) provides that no human organ removed from the body of a donor shall be transplanted into the recipient unless the donor is a ‘near relative’ of the recipient. Section 2(i) of THOT Act defines ‘near relative’, post the Amendment in 2011, to mean the spouse, son, daughter, father, mother, brother, sister, grandfather, grandmother, grandson, or granddaughter. However, Section 9(3) stipulates the conditions in which organ transplant can be made by a donor to a recipient who is not a near relative. They are as under:
1. The donation of organ has to be by reason of affection or attachment towards the recipient or for any other special reason.
2. Prior approval of Authorisation Committee is required.
13. The Authorisation Committee under the THOT Act is required to hold an inquiry and satisfy itself that the applicants have complied with all the requirements under the Act. As per section 9(6), if after providing an opportunity to the applicants of being heard, if the Authorisation Committee is of the view that the applicants have not complied with the requirements of the Act, it can, for reasons to be recorded in writing, reject the application.
14. In the present case, from the report of the Authorisation Committee, three concerns can be deciphered. First, that there is some disparity in the financial position of the Donor and the Recipient. Second, the Authorisation Committee was not satisfied about the motivation of the Donor for donating a kidney to the Recipient. Third, that the Donor is a single mother who is also taking care of the business.
15. It was in order to clarify these concerns that the local commissioner was appointed by this Court. Today, the ld. Local Commissioner’s report has been submitted and the same has been perused by the Court. The ld. Local Commissioner has visited the Donor, both at her place of business, as also at her own residence and her parents’ residence. She has stated various facts, which show that there is no doubt as to the relationship between the Petitioner and the Donor. Even her financial standing has been confirmed by the Local Commissioner. The Court notes that the Donor has one child, who is 21-22 years old. He is also supporting the Donor in her business. The ld. Local Commissioner also confirms that the Donor is making an informed decision and has made plans for her care and recovery from the transplant surgery.
16. The Court is also concerned of the young age of the Recipient and her life/future. While confirming that the conditions as required in law are satisfied, the Court has to balance speed with caution. In the present case, multiple levels of detailed examination have been done qua the Donor. Some of the concerns that existed have now been addressed. On an overall conspectus of the matter, on the basis of interactions held with the parties including the Donor, and on the basis of the report of the ld. Local Commissioner the Court observes the following: (1)That the Donor is the maternal aunt (maasi) of the Recipient. (2)That the Donor with the help of her father and son is running two shops, one boutique shop under the name ‘Wonder World Garments’ and one shop for selling wool under the name ‘Kamal Collection’. Thus, the Donor has her own earnings and is financially independent. (3)That the family of the Recipient may be rendering some moral and logistic support to the Donor, her being the maternal aunt of the Recipient. However, that by itself cannot disqualify the Donor from donating her kidney. The Supreme Court in Kuldeep Singh v. State of Tamil Nadu 2005 (11) SCC 122 has observed that the Authorisation Committee is required to ascertain the true intent and purpose for the authorisation to remove the organ and whether any commercial element is involved as a part of the transaction. To arrive at the conclusion, the Committee can take into consideration factors such as period of acquaintance, degree of association, reciprocity of feelings, and similar human factors. The relevant extract is as under: