High Court clears way for voluntary kidney donation
HC allows voluntary donation of human organs on emotional grounds
STAFF REPORTER, Dhaka
The High Court (HC) yesterday allowed the donation of human organs including kidneys among known persons and outside of near relatives on emotional grounds. The court also directed the government to amend the Transplantation of Human Organs (Amendment) Act, 2018, within six months so that voluntary donors can donate kidneys. The directive was passed by a bench of Justices Moyeenul Islam Chowdhury and Khandaker Diliruzzaman. The voluntary donors will have to be selected after check-up of their physical and mental health conditions and persons addicted to drugs cannot be kidney donors, the bench said while delivering its verdict on a writ petition.
The plea was filed seeking the courts directives so that voluntary donors beyond certain relatives can donate kidneys. The HC also directed the government to amend the Organ Transplantation Act, 1999 (amended in 2018) by incorporating a provision so that emotional donors including near relatives can donate kidneys to patients.
According to the existing provision of this Act, only the near relatives can donate their kidneys.
The petitioners counsel, barrister
Rashna Imam, hailed the verdict as historic.
I am happy as the court has lifted thebar on the donation of human organs by known persons due to the legal fight of a mother who could not take a kidney for her child due to the existing provision of the law. Finally, the bar has been lifted following the legal fight for the past two-and-a-half years, she said.
Fatema Zohra, the mother of a kidney patient, had filed a writ petition with the HC in 2017 challenging the constitutionality of Sections 2 (ga), 3 and 6 of the Organ Transplantation Act 1999 amended in 2018 that only allows the donation of human organs among related persons and near-related persons.
Fatema had donated a kidney to her ailing daughter Fahmida, but the kidney got damaged after a year. Then, she managed a donor for her daughter, but the donor could not donate the kidney due to the bar in the law.
Later, Fatema submitted the petition in the HC, seeking necessary order on the issue.
On August 24, 2017, the HC issued a rule asking the government to explain why the above-mentioned sections of the Act should not be declared unconstitutional.
While barrister Rashna Imam appeared for the petitioner, deputy attorney general Saifuddin Khaled represented the state and advocate ZI Khan Panna appeared for Ain O Salish Kendra (ASK) as an intervener in the case.
On November 7, an expert committee had submitted a report to the HC as per its August 28 order. The report said that there was no need to allow voluntary donors beyond certain relatives as it may give rise to several problems, including organ trafficking.
It also said the inclusion of a provision allowing voluntary kidney donors may give rich people a chance to exploit the poor by offering them benefits or subjecting them to physical and mental torture.
The seven-member committee, headed by Md Rafiqul Islam, president of the Bangladesh Renal Association and pro-vice chancellor of Bangabandhu Sheikh Mujib Medical University, handed over the report to the Supreme Court (SC) registrar generals office on October 29 for placing it in the HC as per its earlier order.
Gonoshasthaya Kendra founder Dr Zafrullah Chowdhury, who voluntarily attended the hearing, told the HC on November 7 that the law needs to be amended so that any healthy person other than the relatives can donate organs.
He also said that there must be a provision in the law so that poor people are not victimised and donors are compensated appropriately.
