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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY, THE 20TH DAY OF MARCH 2018 / 29TH PHALGUNA, 1939 WP(C).No. 8434 of 2018 PETITIONER(S) MOHAMED ABDUL NASSAR, S/O.KUNHIMOIDEEN, AGED 40 YEARS, PULIKKATHODI HOUSE, ADHIKARITHODI, MELMURI P.O., MALAPPURAM DISTRICT. BY ADVS.SRI.C.M.MOHAMMED IQUABAL SMT.N.S.SOUMYA MOL RESPONDENT(S): 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 2. THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 3. THE DISTRICT LEVEL AUTHORIZATION COMMITTEE, FOR TRANSPLANTATION OF HUMAN ORGANS, THRISSUR, THRISSUR MEDICAL COLLEGE HOSPITAL, POST THRISSUR, PIN-680 020, REPRESENTED BY ITS CHAIRMAN. 4. LOCAL APPROVAL COMMITTEE OF ORGAN TRANSPLANTATION, WESTFORT HI-TECH HOSPITAL, THRISSUR, PIN-680 002, REPRESENTED BY ITS CHAIRMAN. 5. THE NODAL OFFICER, KNOS, DECEASED DONOR MULTI ORGAN TRANSPLANTATION PROGRAMME, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN-695 001. BY STATE ATTORNEY SRI K V SHOHAN GOVERNMENT PLEADER SRI ARAVINDA KUMAR BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WWW.LIVELAW.IN WP(C).No. 8434 of 2018 (D) APPENDIX PETITIONER(S)' EXHIBITS EXT.P1; TRUE COPY OF THE CERTIFICATE ISSUED BY THE DEPARTMENT OF NEPHROLOGY, WESTFORT HI-TECH HOSPITAL, THRISSUR, DATED.08.03.2018. EXT.P2; THE TRUE COPY OF THE PRESS NOTE ISSUED BY THE DIRECTOR OF P&ARD OF THE HEALTH DEPARTMENT, STATE OF KERALA DATED 30.12.2016. EXT.P3; THE TRUE COPY OF THE ADVERTISEMENTS PUBLISHED IN THE MALAYALA MANORAMA DAILY DATED 25.01.2017. EXT.P4: THE TRUE COPY OF THE JUDGMENT DATED 24.11.2017 IN WPC.NO.33801/2017 OF THIS HON'BLE COURT. EXT.P5: THE TRUE COPY OF THE GOVERNMENT ORDER DATED 15.2.2018 ISSUED BY THE 2ND RESPONDENT. EXT.P6: THE TRUE COPY OF THE GUIDING PRINCIPLES ISSUED BY THE WORLD HEALTH ORGANIZATION. EXT.P7: THE TRUE COPY OF THE DETAILS REGARDING ZONAL WAITING LIST FOR KIDNEY BEFORE THE 5TH RESPONDENT.

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Antony Dominic, C.J. & Dama Seshadri Naidu, J. ------------------------------------------WPC No.8434 of 2018 -------------------------------------------Dated this the 20th day of March, 2018 JUDGMENT Antony Dominic, C.J. This writ petition is filed, challenging Ext.P5. Ext P5 is the copy of G.O.(MS) No.26/2018/H&FWD dated 15.2.2018

whereby

the

Health

&

Family

Welfare

Department of the State of Kerala have introduced guidelines

for

organ

transplantation,

following

the

judgment of this Court in WPC No.33801 of 2017. 2. In so far as the illegality of Ext.P5 is concerned, the challenge raised by the petitioner is mainly confined to 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

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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.

3. According to the learned counsel, these provisions of Ext.P5 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 is stated that if the aforesaid provision of Ext.P5 is implemented, that will only result in encouraging commercial dealings in human organs which is punishable. 4. We have considered the submissions made and according to us, a reading of the impugned provision of Ext.P5 would show that it only provides that all 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

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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. These provisions of Ext.P5 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. Therefore, the contention of the learned counsel that the aforesaid provision of Ext.P5 would violate Act 42 of 1994, cannot be accepted. We do not find any illegality for interference and the writ petition is dismissed. In spite of the above, it is clarified that if the petitioner or anybody else of that matter has any suggestion for improvement of the guidelines, they would always be at liberty to bring it to the notice of the Secretary to the Government, Health & Family Welfare (B) Department, who, thereupon, shall take into account

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the suggestions so made and if it is found that the suggestions are the worth incorporation in the order, the needful shall be done. Sd/Antony Dominic Chief Justice Sd/Dama Seshadri Naidu Judge css/