New Delhi: To address a critical “legislative gap” that stalled life-saving medical procedures, the Delhi High Court last week set aside a restrictive interpretation of the Transplantation of Human Organs & Tissues Act (THOTA), 1994 for facilitating complex kidney swaps among patients.
The law, the HC said, must serve human life rather than obstruct it through rigid technicalities.
A swap or paired kidney transplant is a life-saving procedure for patients who have a willing but incompatible donor due to incompatible blood groups. It involves two or more donor-recipient pairs exchanging kidneys so that each patient receives a compatible organ. This, in turn, benefits patients by expanding donor options and reducing wait times for a suitable match.
The core of the dispute centered on Section 9(3A) of the Act which restricts the exchange of donors between two biologically incompatible donor-recipient pairs only, as interpreted by the Appellate Authority under the Act.
Rejecting this narrow reading, Justice Purushaindra Kumar Kaurav noted that such an interpretation “truly, borders on absurdity”.
The judge clarified that the statutory use of terms like “first donor” and “second donor” was never intended to limit the number of participants, but was used “merely to illustrate and exemplify the procedure”. The ruling asserted that courts must adopt a “just, reasonable and sensible” interpretation to ensure the will of individuals to donate to their near-relatives can “meaningfully fructify”.
The case before the HC involved four donor-recipient pairs consisting of four proposed recipients and donors each. With the court’s nod, four patients with chronic renal disease will now receive kidneys from each other’s close relatives.
In doing so, the HC ruled that the rejection of the kidney swap proposal by the private hospital’s Authorisation Committee and the Health Ministry’s Appellate Authority – was contrary to the intent of the 1994 Act.
The high court emphasised that so long as organ trafficking is prevented, “artificial and forced gaps” should not hinder medical progress.
Also Read: The desperate hunt for organ donors in India. Families fight red tape, distrust, ignorance
A patchwork of policies
The petitioners argued that in the absence of a national policy coupled with the fact that different states have either no policy or an independent policy, swap transplantation is not being done, despite a large number of donors being available.
This sentiment was echoed by the Supreme Court in a 2025 judgement, where it noted that a lack of uniform guidelines leads to missed opportunities for transplants despite a high number of willing donors.
In November last year, after admitting a plea filed by Indian Society of Organ Transplantation seeking uniformity, equality and access for both organ donors and recipients, the SC requested the Union through the National Organ & Tissue Transplant Organisation (NOTTO) to evolve national swap transplantation guidelines in consultation with all States to implement Section 9(3) of the 1994 Act.
“The swap transplantation guidelines should be on a national-level providing equal opportunities to all the persons for swap and must be done digitally through an accessible web portal,” the top court had said.
A senior official from the NOTTO told ThePrint that the Ministry of Health and Family Welfare has constituted a committee and currently, a group of experts are working on making nation-wide guidelines. With pan-India representation from both ministries and private sector, the guidelines and the digital platform are in its final phases.
Legal experts within the ministry were of the opinion that multiple swaps should not happen, the official said. “Case-to-case is fine but swapping of 4 should not be happening.”
Recognising that individual court orders are no substitute for systemic reform, the Delhi High Court reinforced the need for the NOTTO to take the lead.
The NOTTO was asked to “evolve common national swap transplantation guidelines” in consultation with all states.
A crucial component involves the creation of a digital web portal to manage the national grid. This system is intended to provide “equal opportunities to all persons” and include provisions to “alleviate the concerns with respect to gender, class and regional discrimination,” the court said.
For instance, Kerala issued guidelines as early as 2018 that explicitly mentioned using a “computer assisted matching algorithm” for swaps involving more than one pair.
In April, Karnataka issued administrative guidelines specifically to facilitate multi-pair kidney swaps, noting that while the Act is silent on three-way exchanges, there is “no legal impediment” to allowing them.
Ultimately, the judgment rests on the principle that the law is a tool for justice, not a hurdle for survival. Quoting earlier precedents, the high court reminded the medical and legal community that “loss of human life should not be permitted merely at the altar of technicalities”.
By ruling that Section 9(3A) must be interpreted to “further the possibility of matching legally and clinically compatible donors”, the Delhi HC sent a clear message: in the race against organ failure, the spirit of the law must always prevail.
(Edited by Tony Rai)
Also Read: 85% of India’s transplant centres are private. Why govt hospitals are struggling to keep up