THE HON’BLE MR JUSTICE L. NARASIMHA REDDY + Writ Petition No. 5618 of 2009 % 30-03-2009 Between: Smt.Kamala Devi …Petitioner And The Director of Medical Education and Chairman, Authorization Committee for Organ Transplantation, Hyderabad and another …Respondents ! Counsel for Petitioner : Sri Ms. Megha Rani Agarwal ^ Counsel for Respondents : G.P for Medical Health < Gist: > Head Note: ? CITATIONS: THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Writ Petition No.5618 of 2009 ORDER: The son-in-law of the petitioner, by name, Sanjay Agarwal, is suffering from malfunctioning of kidneys. The medical advice tendered to him, required replacement of one of his kidneys. The petitioner expressed her willingness to donate one of her kidneys, to her son-in-law. She approached the A.P. State Authorization Committee for Organ Transplantation, constituted under sub-section (5) of Section 9 of the Transplantation of Human Organs Act, 1994 (for short ‘the Act’) for necessary permission. The Committee, under the chairmanship of the 1st respondent, examined the petitioner and addressed letter dated 21-02-2009 to the 2nd respondent. The Committee expressed the view that it can examine the persons, only when the kidney transplantation takes place in the State of Andhra Pradesh, and since the proposed operation is to be conducted at a research center, at Ahmedabad, necessary steps have to be taken by the Committee, functioning in that State. It also took note of the fact that the son-in-law of the petitioner is residing in Chattisgarh. The petitioner feels aggrieved by the letter dated 21-02-2009. It is urged that the Transplantation of Human Organs Rules, 1995 (for short ‘the Rules’), framed under the Act, provide for certification or clearance by the Authorisation Committees of the respective States, in which the donor/donee resides, as well as the State, in which the surgery for transplantation takes place. Heard Sri Ms. Megha Rani Agarwal, learned counsel for the petitioner, and learned Government Pleader for Medical and Health. The Parliament enacted the Act with an object of regulating the removal, storage and transplantation of human organs, for therapeutic purposes, and for the prevention of commercial dealings in such activities. Apart from placing restrictions on the indiscriminate removal of human organs, the Act provides for certification of the Institutions, where transplantation of human organs can take place, and constitution of Authorisation Committees. Section 10 places restriction on the institutions to undertake such activities, except on the basis of registration under the Act. Sub-section (4) of Section 9 provides for constitution of Authorisation Committees. Clause (a) thereof empowers the Central Government to constitute committees for Union Territories, and clause (b) authorizes the State Governments to constitute such committees, for the respective States. The Act is some-what silent as to the nature of steps to be taken, where the donor and the donee hail from different places, or transplantation is to take place at an institution in a State, other than the one, in which the donor or the donee resides. Obviously, with a view to meet the situations of this nature, the Rules are framed in the year 1995, providing for details. Recently, through G.S.R. 571(E), dated 31-07-2008, Rule 6-B was added. Rules 6-B and 6-C of the Rules read as under: “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 Authorisation Committee is mandatory. Rule.6-C: The quorum of the Authorisation 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.” 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 fidies 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 located; 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. This being the situation, the 1st respondent expressed its disinclination to certify the status of the petitioner, in the context of donating the kidney to her son-in-law, on the ground that the recipient is residing in the State of Chattisgarh, and the transplantation is going to take place in the State of Gujarat. That approach is contrary to Rule 6-B of the Rules. Having regard to the urgency in the matter, this Court directed the 1st respondent to re-examine the petitioner, as provided for under Rule 6-B of the Rules. With all promptitude, the 1st respondent arranged for examination of the petitioner, and certification was also done. With this, the grievance of the petitioner stands redressed. The writ petition is accordingly disposed of. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.30-03-2009. Note: L.R. copy to be marked. (B/O)KO*