Shivani Khurana & Ors. vs Union Of India & Ors.

$~80
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7473/2026 and CM APPL. 36279/2026
Date of Decision : 26.05.2026
IN THE MATTER OF:

SHIVANI KHURANA & ORS. .....Petitioners
Through: Mr. Naveen R. Nath, Sr. Adv. with
Ms. Gayatri Virmani, Mr. Sai
Vaishnav and Ms. Disha Gupta,
Advs.

versus

UNION OF INDIA & ORS. .....Respondents
Through: Mr. Sumit Nagpal (SPC) with Mr.
Tanmay Saini, Advocate for R-1 and
2.
Mr. Sanjeev Puri, Sr. Adv. with Mr.
Rohit Puri, Advocate for R-3.
Mr. Anubhav Gupta, Panel Counsel
(Civil), GNCTD/R-5.
Ms. Sanjana Akhilesh Singh,
Government Pleader, Advocate for
Union of India.

CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV

JUDGEMENT

PURUSHAINDRA KUMAR KAURAV, J. (ORAL)
1. The present petition assails the order dated 28.04.2026 (“ Impugned
Order ”) passed by the Appellate Authority under the Transplantation of
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By:PURUSHAINDRA
KUMAR KAURAV
Signed By:AMIT KUMAR
SHARMA
Signing Date:30.05.2026
12:26:07

Human Organs & Tissues Act, 1994 (“ Act ”), whereby the petitioners‟
appeal against the respondent no.3-Authorisation Committee‟s
(“ Authorisation Committee ”) decision dated 28.04.2026 (“ Impugned
Decision ”) was dismissed. Vide the Impugned Decision the Authorisation
Committee, had refused permission for a „ four-way-swap kidney
transplantation ‟ (hereinafter “ Proposed Procedure ”) inter se amongst the
petitioners.
2. Petitioners no.1 to 4 are the proposed recipients and petitioners no.5
to 8 are the proposed donors. They comprise four donor-recipient pairs.
Each pair is of two „near-relatives‟ as defined under Section 2(i) of the Act.
For the sake of clarity, the relationship between the petitioners, as per the
chart furnished by learned counsel, is extracted below:


3. The singular reason to reject the Proposed Procedure is that Section
9(3A) of the Act, as per the Appellate Authority, permits the exchange of
donors between two biologically incompatible donor-recipient pairs only.
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By:PURUSHAINDRA
KUMAR KAURAV
Signed By:AMIT KUMAR
SHARMA
Signing Date:30.05.2026
12:26:07

There is, according to the authority, no provision under the Act that allows a
swap donor transplant between more than two incompatible pairs. The
relevant portion of the order passed by the Appellate Authority is extracted
below for reference:
“ 3. The Appellate Committee met on 16.04.2026 under the Chairmanship
of Additional Secretary in the Ministry of Health and Family Welfare to
examine the appeal, grounds of appeal along with the documents as
submitted by Max Superspeciality Hospital, Saket, New Delhi. After
detailed discussions and deliberations, the observations of the appellate
committee members are given as under:

a. The committee noted that the current legal provision for swap
donor transplantation as provided under Section 9(3A) of the
Transplantation of Human Organs and Tissues Act. 1994 (THOTA)
permits only exchange of donors between two biologically
incompatible donor - recipient pairs, wherein the donor of one pair
donates to the recipient of the other pair and vice versa.

b. It was opined that the current legal provision as mentioned in para
3(a)does not allow, swap donor transplant between more than 2
incompatible pairs. For permitting more than 2 pairs, it will require
amendment in the current Act.

4. Accordingly, the proposed case involving a four-way swap
transplantation amongst four donor-recipient pairs is not covered under
the extant provisions of THOTA, as the current legal framework provides
for only a two-way swap and does not provide for multi-way swap
transplantation involving more than two pairs. Since the present case
involves a four-way swap transplantation and the same is not permissible
under THOTA. Hence the appeal is Rejected.”
4. The present petition was called for hearing, for the first time,
yesterday and the Court directed for the issuance of notice to the
respondents. Today, the respondents are represented by their respective
counsel.
5. Mr. Sanjeev Puri, learned senior counsel appearing for the
Authorisation Committee, points out certain practical challenges being faced
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KUMAR KAURAV
Signed By:AMIT KUMAR
SHARMA
Signing Date:30.05.2026
12:26:07

by the Authorisation Committee. He submits that the respondent-authorities
have bona fide refused permission owing to lack of clarity on the
interpretation of the Act.
6. Mr. Naveen R. Nath, learned senior counsel appearing for the
petitioner, has taken the Court through a detailed note and a chart detailing
the proposed donors/recipients, prepared by Ms. Gayatri Virmani, learned
counsel, and submits that there have been numerous other instances of
multi-party swap transplants such as the present, and the same is in fact the
best possible medical solution to overcome issues of medical incompatibility
of near-relatives for organ transplantation.
7. He places reliance on the decision of the Supreme Court in the case of
1
Indian Society of Organ Transplantation v. Union of India & Ors. and
submits that the Supreme Court has taken note of some of the shortcomings
in the current legal framework for cases of swap-transplantations and has
directed respondent no. 4 i.e. National Organ and Tissue Transplantation
Organisation to evolve a common national swap transplantation guidelines.
Further, the regulatory procedure for the same has been directed to be done
digitally through an accessible web portal.
8. The prayer in this petition is with respect to four human lives and
requires urgent consideration. The sole legal question for the consideration
of the Court is whether, the Authorisation Committee can permit, under
Section 9(3A) of the Act, swap transplantations between multiple donor-
recipient pairs.
9. Before delving into the interpretation of the said provision, certain
authorities on the Act and the issue at hand may be taken note of.
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By:PURUSHAINDRA
KUMAR KAURAV
Signed By:AMIT KUMAR
SHARMA
Signing Date:30.05.2026
12:26:07

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10. In Kuldeep Singh v. State of Tamil Nadu , the Supreme Court noted
the purpose of the Act to be to prevent commercial dealings in human
organs. Para. 12 of the said decision reads as under:
“ 12. Where the donor is not “near relative” as defined under the Act the
situation is covered by sub-section (3) of Section 9. As Form 1 in terms of
Rule 3 itself shows, the same has to be filed in both the cases where the
donor is a near relative and where he is not, so far as the recipient is
concerned. In case the donor is not a near relative the requirement is that
he must establish that removal of the organ was being authorised for
transplantation into the body of the recipient because of affection or
attachment or for any special reasons to make donation of his organ. As
the purpose of enactment of the statute itself shows, there cannot be any
commercial element involved in the donation. The object of the statute is
crystal clear that it intends to prevent commercial dealings in human
organs. The Authorisation Committee is, therefore, required to satisfy that
the real purpose of the donor authorising removal of the organ is by
reason of affection or attachment towards the recipient or for any other
special reason. Such special reasons can by no stretch of imagination
encompass commercial elements. Above being the intent, the inevitable
conclusion is that the Authorisation Committee of the State to which the
donor and the donee belong have to take the exercise to find out whether
approval is to be accorded. Such Committee shall be in a better position to
ascertain the true intent and the purpose for the authorisation to remove
the organ and whether any commercial element is involved or not. They
would be in a better position to lift the veil of projected affection or
attachment and the so-called special reasons and focus on the true intent. ”

(Emphasis supplied)
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11. In Parveen Begum v. Appellate Authority , this Court was faced with
a challenge to the Authorisation Committee‟s refusal to permit
transplantation between non-relatives on the ground that the petitioner had
not satisfied it as to why no near-relative could have been the donor.
Ultimately, the Court held that the Act and the rules framed thereunder do
not seek to prohibit, but to only regulate, the transplantation of organs and

1
2025 INSC 1361.
2
(2005) 11 SCC 122.
3
2012 SCC OnLine Del 2839.
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SHARMA
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tissues from cadavers and living human beings. What is prohibited is the
commercial transaction in the giving and taking of organs and tissues. The
relevant portion of the said decision is extracted below, for reference:
“ 51. From the above statutory provisions and the scheme of the Act,
it becomes clear that the Act and the Rules do not seek to prohibit, but
to only regulate the transplant of organs and tissues from cadavers
and living human beings. What is prohibited is the commercial
transaction in the giving and taking of organs and tissues . However,
donations offered out of love and affection - even amongst those who
are not near relatives, is permitted. The aforesaid scheme under the Act
recognizes two of the greatest human virtues of love and sacrifice, and
also the fact that such intense love and affection need not necessarily
be felt only for one's own blood or spouse, but could also extend to
those not so closely related, or for those not related at all. ”

(Emphasis supplied)

12. A similar view is taken by the Madras High Court, in S. Samson v.
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Authorisation Committee. , wherein, it was held that in cases under the Act,
the authorities are to look into the issue, in a manner as to save the life of a
person. Permission, therefore, ought not to be refused on overly technical
grounds :
“ “ 11. From a reading of the relevant provisions of the Act, it is clear that
there must be a thorough enquiry of the matter and an opportunity of
hearing should be given to the parties concerned and the matter has to be
looked into with the avowed object of helping the needy whose life is in
danger. It is also clear that the authorities concerned, while exercising the
power under the Act, must also look into the issue in a manner so as to
save the life of a person and the matter should not be looked into from the
technical point of view…”

13. The Punjab and Haryana High Court, in Ajay Mittal and Ors. v.
5
Union of India and Ors. , has, further, held that loss of human life should
not be permitted merely at the altar of technicalities and more so when the

4
2008 SCC OnLine Mad 317.
5
2022 SCC OnLine P&H 3696.
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Signed By:AMIT KUMAR
SHARMA
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possibility of commercial transaction in such swapping has been completely
ruled out. Para. 20 of the said decision reads as under:
“ 20. Loss of human life should not be permitted merely at the alter of
technicalities and more so when the possibility of commercial transaction
in such swapping has been completely ruled out. The Donor for petitioner
No. 1 is his mother-in-law and as such, it cannot be construed that the said
donor has agreed to donate her kidney for commercial reasons. The social
family bonds; the social fabric and family structure in the Indian Sub
Continent is also required to be kept in consideration and such relatives
from the family of the spouse cannot be isolated as completely distant or
wholly unrelated. ”

14. Section 9(3A) then reads as under:
“ (3A) Notwithstanding anything contained in sub-section (3), where—

(a) any donor has agreed to make a donation of his human organ
or tissue or both before his death to a recipient, who is his near
relative, but such donor is not compatible biologically as a donor
for the recipient; and

(b) the second donor has agreed to make a donation of his human
organ or tissue or both before his death to such recipient, who is
his near relative, but such donor is not compatible biologically as
a donor for such recipient; then

(c) the first donor who is compatible biologically as a donor for the
second recipient and the second donor is compatible biologically
as a donor of a human organ or tissue or both for the first recipient
and both donors and both recipients in the aforesaid group of
donor and recipient have entered into a single agreement to donate
and receive such human organ or tissue or both according to such
biological compatibility in the group,

the removal and transplantation of the human organ or tissue or
both, as per the agreement referred to above, shall not be done
without prior approval of the Authorisation Committee. ”

15. A perusal of the aforenoted provision would reveal that it is intended
to redress a serious practical difficulty where the will of an individual to
donate in favour of their near relatives cannot meaningfully fructify owing
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KUMAR KAURAV
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SHARMA
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to biological incompatibility and no fault of their own. The legislature in its
wisdom, has to allow pairs of non-compatible donors and recipients to swap
inter se . The said provision is, therefore, a carve out within the large scheme
of the Act, where, subject to compliance with the requirement of non-
commerciality, persons are allowed to inter se donate and receive organs
and tissues.
16. The said provision does not in any manner whatsoever bar an inter-se
transplantation between more than two pairs. The usage of words such as
“ first donor ” and “ second donor ” in the said provision is merely to illustrate
and exemplify the procedure which is to be followed. The said words ought
not to be interpreted as confining the scope of the provision to only the
second donor and the second pair. Such an interpretation, truly, borders on
absurdity.
17. In erudite terms, the learned author in GP Singh’s Principles of
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Statutory Interpretation , has noted that while selecting out of different
interpretations “ the Court will adopt that which is just, reasonable and
sensible rather than that which is none of the hose things ”. A construction
giving rise to an anomaly ought to be avoided.
18. Therefore, so long as the underlying object of the Act i.e., to prevent
organ trafficking and commercialisation of the organ transplantation, is
satisfied, mere purported, artificial and forced gaps ought not to come in the
way of the petitioners‟ availing benefits thereunder.

19. In the instant case, three of the four recipients are highly sensitised
and have tested positive for a cross-match test which indicates that a
recipient‟s blood contains antibodies that actively react against and attack
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KUMAR KAURAV
Signed By:AMIT KUMAR
SHARMA
Signing Date:30.05.2026
12:26:07

the organs and cells of the specific donor. The purpose of Section 9(3A) of
the Act is to enhance the possibility of identifying a compatible match from
a donor who has a reciprocal organ transplant necessity for his/her close
relative. Thus, Section 9(3A) has to be interpreted in a manner that furthers
the possibility of matching legally and clinically compatible donors with the
recipients.
20. The Supreme Court has also emphasised the need for a uniform
national approach with a national database to facilitate swap transplants
efficiently in its decision in Indian Society of Organ Transplantation . The
relevant portions of the said decision are extracted below, for reference:
“10. Another issue highlighted by the learned senior counsel for the
petitioner is with regard to the swap transplantation, which is permitted
under Section 9(3A) of the 1994 Act. According to the petitioner, on
account of low deceased organ donation rates and donor-recipient
incompatibility, a national policy for swap transplantation would go a
long way in the matter of organ donation/transplantation. It is submitted
that in the absence of a national policy coupled with the fact that
different States have either no policy, or an independent policy, the swap
transplantation is not being done though a large number of donors are
available. It is further submitted that a national grid for swap
transplantations and organ donations would enable different donors and
different recipients in various States across the country to connect
thereby increasing the number of transplants. It is, therefore, submitted
that the Union of India through the NOTTO must formulate a national
policy to ensure equitable access to swap transplantation for addressing
the existing inequalities in the healthcare system.
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19. In light of the above, we issue the following directions:
xxxx
v. The Union of India through NOTTO is requested to evolve model
allocation criteria in consultation with all the States so as to ensure a
uniform national policy for transplantation. The uniform national
policy guidelines must include provisions to alleviate the concerns
with respect to gender, class and regional discrimination and provide
appropriate remedial provisions for the same. The policy must

6 th
13 Ed., 2012, Ch. 2, pg. 132-133.
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endeavor to have uniform criteria for the registration of patients,
donors and formats throughout the country.
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vii. We further request the Union of India through 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”
21. National Organ and Tissue Transplantation Organisation has also
taken initial steps towards implementation of uniform procedure for swap
transplantations and vide letter dated 16.04.2025, directed all States and
Union Territories to co-operate in the same.
22. Some States have even identified the legislative gap and have sought
to address the same. The State of Karnataka has issued „Administrative
Guidelines for Multi-Pair Kidney Paired Exchange (Swap) Transplantation
under Section 9(3A) of the Transplantation of Human Organs and Tissues
Act (THOTA), 1994‟ dated 04.04.2026 to address the very aspect in issue in
this petition. The Guidelines clarify that the scope of the provision under
Section 9(3A) could be extended even to multi-way swap transplantations.
In the preamble to the said guidelines, the following observations have been
made:
“ 2. A significant number of donor-recipient pairs in Karnataka are
unable to undergo transplantation on account of biological
incompatibility, including ABO blood group mismatch, positive
crossmatch or HLA incompatibility. Kidney Paired Exchange (KPE)
Transplantation — commonly referred to as Swap Transplantation — is
an internationally recognised, scientifically validated and ethically
accepted modality to resolve such incompatibility.

3. Applications have been received from registered transplant hospitals
in Karnataka seeking approval for multi-pair Kidney Paired Exchange
Transplantation involving three or more donor-recipient pairs („three-
way‟ or higher).
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By:PURUSHAINDRA
KUMAR KAURAV
Signed By:AMIT KUMAR
SHARMA
Signing Date:30.05.2026
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4. Section 9(3A) of THOTA, as it presently stands, explicitly contemplates
the swap mechanism between „a first donor' and „a second donor‟ and
their respective near-relative recipients. The Act does not explicitly
address three-way or multi-pair exchanges. However, neither the Act nor
the Rules contain any express prohibition on multi-pair exchanges. The
Legal Advisor has opined that a there is no legal impediment to the
Authorization Committee taking a decision on multi-pair swap cases,
provided the proposed transplantation is not contrary to the Statement of
Objects and Reasons of the parent Act and the Amendment Act of 2011.
The Supreme Court of India, in the judgment cited at Reference No. 3
above, has also affirmed the provisions of Sections 9(3A), 13A, 13B, 13C
and 13D.

5. Keeping in view the legal position, the humanitarian imperatives, the
scientific consensus and the directions of the Hon‟ble Supreme Court, the
Government considers it necessary and expedient to issue administrative
guidelines to facilitate multi-pair kidney swap transplantations in
Karnataka while ensuring strict adherence to the ethical standards and
legal safeguards mandated by the Act and the Rules. ”
23. Further, the State of Kerala, vide order dated 15.02.2018 has also
issued guidelines for altruistic and exchange donation of organs and tissues.
No restriction against swap transplantations involving more than two donor-
recipient pairs exists even in these guidelines. The relevant portion of the
same is extracted below, for reference:
“ Swap donation
The donors donate organs to stangers in exchange for getting the
best matched organ for their near relatives or friends to whom they
intend to donate organs. Blood group incompatible donor recipient pair
can exchange donor with another blood group incompatible pair. There
are more than one pair and if more than on hospital is involved, the
donor will have to travel to the recipient hospital, the donor organ
removal must be started simultaneously in both the hospitals. If there are
more than one pair, donor receipient maching will be done by a
computer assisted matching algorithm which will be designed by NIC.
For this donation process KNOS will have separate Web based registry.
The patients with kidney failure, who have a blood group
compatible donor (near relative), but with positive lymphocyte cross
match, can be registered under Swap Donation Registry.
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KUMAR KAURAV
Signed By:AMIT KUMAR
SHARMA
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The cases of swap donation referred to under subsection (3A) of
section 9 of the Transplantation of Human Organs Act shall be approved
by Authorisation Committee of hospital or district or State in which
transplantation is proposed to be done and the donation of organs shall
be permissible only from near relatives of the swap recipients.”
24. Mr. Nath also points out that recently, eleven sets of donors/recipients
underwent swap transplants at IKDRC, Gujarat.

25. The Court, thus, finds that multi-party swap transplantation being one
of the best courses of action for patients facing difficulties in finding a
suitable donor, ought not to be restricted only between two pairs of donor-
recipients.
26. Section 9(3A) of the Act and the use of the expressions “ first donor ”
and “ second donor ”, therefore, are to be construed as expressing merely the
procedure for facilitating a transplantation or human organ or tissue where,
subject to compliance with other conditions, individuals with a bona fide
and genuine desire to donate to their “ near relative ” have been unable to do
so owing to biological incompatibility.
27. The Court, thus, finds that the decision passed by the Authorisation
Committee as well as by the Appellate Authority, which is based on a
mistaken and restrictive interpretation of Section 9(3A) of the Act, deserves
to be set aside.
28. The Authorisation Committee is directed to examine the feasibility of
the four-way swap transplantation in accordance with Section 9(3A) of the
Act as interpreted hereinabove. It is clarified that the permission shall be
granted by the Authorisation Committee after complying with the other
requirements under the Act including those with respect to absence of
commercial dealing with respect to proposed transplantation etc.
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By:PURUSHAINDRA
KUMAR KAURAV
Signed By:AMIT KUMAR
SHARMA
Signing Date:30.05.2026
12:26:07

29. With these directions, the petition stands disposed of.


PURUSHAINDRA KUMAR KAURAV, J
MAY 26, 2026/p/amg/ksr




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Signing Date:30.05.2026
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