AJAY MITTAL Vs. UNION OF INDIA

JUDGEMENT

(1.) All advancement in science has so far not been successful to generate human organ. Mankind still relies on humans to donate human organs for saving human lives. Government has been promoting awareness in society to voluntary donate bodies and organs after death so that life goes on for others. This society led to people profiteer and indulge in organ trade which went alarming when organs of gullible people were removed without their knowledge or consent or by taking advantage of huge socio-economic disparity and exploiting people and their circumstances to indulge in trade keeping largest part for themselves and minuscule remittances for the donor. Such scandals and practices necessitated legislation to regulate organ transplantations and to prohibit commercial organ transplantation.

(2.) The object of the Transplantation of Human Organs and Tissues Act, 1994 is not to prohibit an organ transplant but to regulate transplant and to rule out a commercial monetary transaction. The Act intends to mitigate the hardships and to prohibit commercial exploitation of the organ market while recognizing transplant and donation out of love and affection or care and concern. It also permits swapping of organs where different sets of willing donors but mismatching blood profile intend to swap their organs for mutual good and for saving the lives of their near and dear ones, instead of having to pay for costly medical treatments and yet a slow but definite end. The gap, however, arose from the use of word 'near relation' used in the statute, where even though an undisputed relationship does not fall in the definition. The statute recognizes only the blood relatives or the relation by matrimony but not the extended family from the blood relations or the matrimony who may share the same love, affection, concern and care, yet, law regards them as distant and suspects such donors. This gap between socio-reality and legislation is the cause of present case.

(3.) The present petition seeks issuance of writ in the nature of mandamus to grant approval to the petitioners to engage in 'Swap Transplantation' and donation of kidneys as per the Transplantation of Human Organs and Tissues Act, 1994 read with the Transplantation of Human Organs and Tissues Rules, 2014.