Kerala HC prohibits publications seeking kidney donations even if they do not establish any commercial arrangement

Kerala High Court: A Single Judge Bench comprising of K. Vinod Chandran, J. heard a batch of writ petitions dealing with permission to publish advertisements in print media seeking donation of kidneys from altruistic donors from the public. This Court, on previous occasions has permitted such publications, holding that the Transplantation of Human Organs and Tissues Act of 1994 does not prohibit such publications as long as no financial arrangement is made between the parties.

While the petitioners contended that the Act only prohibited publications inviting donors for consideration, the State contended that there existed no safeguards to prohibit commercial dealings once the publication had been made. It was also brought to the notice of the Court that the media refuses to publish due to fear of prosecution. The Court opined that it could not direct publication if the media was refusing due to fear of prosecution or due to ethical reasons and that it will not be proper for the Court to exercise the discretionary extraordinary jurisdiction.

The Court held that the Act was “a perfect example of social engineering and it is not for this Court to interfere with such a law on misplaced sympathies.” Therefore, the prayer to allow such publications was not allowed by the Court. The Guiding Principles for Organ Donation were also discussed by the Court and the Bench also came up with an alternate measure wherein, the petitioners seeking kidney transplants could register themselves with the Kerala Network for Organ Sharing. [Moideen E.M. v. State of Kerala, 2017 SCC OnLine Ker 21219, decided on 24-11-2017]

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