Kidney Donation by Non-Relative: Calcutta High Court

Why in News?

The Calcutta High Court set aside the refusal of permission for a kidney donation by a driver’s wife to her employer, holding that donation by a non-near-relative is legally permissible when it is based on affection, attachment or other special reasons, subject to statutory approval.

Case:

Ranjeet Kumar Ghosh v. State of West Bengal & Ors.

The proposed donor was the wife of the petitioner’s driver. She was not his “near relative”, but stated that she wished to donate her kidney because of her affection and personal association with him. Police verification found no cash/kind transaction and no middleman. Live Law

Legal Framework:

Transplantation of Human Organs and Tissues Act, 1994 — Section 9(3):

• Normally, living-organ donation is permitted between near relatives.
• However, a non-near-relative may donate where the donation is motivated by:
  • Affection
  • Attachment
  • Other special reasons
• Such transplantation requires prior approval of the Authorisation Committee.

Role of Authorisation Committee:

Under Rule 7(3), THOA Rules, 2014, the Committee must examine:

• Relationship between donor and recipient
• Circumstances leading to donation
• Possibility of commercial transaction
• Presence of any middleman/tout
• Genuine intention behind the donation.

What did the High Court hold?

• Non-relative donation is not prohibited per se.
• The primary statutory concern is preventing commercial dealing in human organs.
• Authorities may conduct verification, but cannot impose an excessive burden of proof without concrete material suggesting financial dealings.
• A genuine claim of donation based on love and affection should not be rejected without credible reasons.
• The Committee’s rejection was therefore set aside, and reconsideration was directed.

Supreme Court Precedent:

In Kuldeep Singh v. State of Tamil Nadu, the Supreme Court emphasised that the statutory framework is intended to prevent commercialisation of human organs and requires authorities to ascertain the donor’s true intention.

Legal Principle:

Non-relative ≠ Ineligible donor

The law does not create an absolute prohibition on donation by a non-relative; it requires enhanced scrutiny and prior Authorisation Committee approval to ensure that the donation is genuine and not commercially motivated.

Mains:

“The law permits altruistic organ donation by non-near-relatives while prohibiting commercialisation of human organs.” Discuss with reference to Section 9 of the Transplantation of Human Organs and Tissues Act, 1994.

Kidney Donation by Non-Relative: Legal Position

Why in News?

The Calcutta High Court held that donation of a kidney by a non-near-relative is not prohibited per se. It may be permitted on grounds of affection, attachment or special reasons, subject to statutory approval.

Legal Basis: THOTA, 1994

Section 9 – Restrictions on removal and transplantation

• Near-relative: Living donation is generally permitted.
• Non-near-relative: Donation may be allowed for affection, attachment or other special reasons, with prior Authorisation Committee approval.
• Core principle: Non-relative ≠ ineligible; commercial donation is prohibited.

Important Provisions

• Section 3: Regulation of removal of human organs/tissues.
• Section 9: Restrictions on transplantation; near-relative and non-relative donation.
• Section 10: Regulation of hospitals/medical institutions.
• Section 11: Transplantation only for therapeutic purposes.
• Section 13: Appropriate Authority—registration, inspection and enforcement.
• Sections 14–17: Hospital registration, suspension/cancellation and appeals.
• Section 18: Removal of organ without authority—punishable offence.
• Section 19: Commercial dealings in human organs prohibited.

Legal Principle

Altruistic non-relative donation is permissible, but it requires scrutiny and Authorisation Committee approval to prevent organ trafficking and commercialisation.

Mains:

Discuss the legal framework governing organ donation by non-near-relatives under Section 9 of THOTA, 1994.