In a significant decision for organ transplantation law in India, the Delhi High Court in Shivani Khurana & Ors. v. Union of India & Ors. (2026) clarified that the Transplantation of Human Organs and Tissues Act, 1994 (THOTA) permits multi-way kidney swap transplants and is not restricted to exchanges involving only two donor-recipient pairs.
The judgment represents a patient-centric interpretation of THOTA and reinforces the principle that legal technicalities should not stand in the way of life-saving medical treatment when there is no element of commercial dealing in human organs.
Understanding Swap Kidney Transplantation
Kidney transplantation often becomes difficult when a willing donor is biologically incompatible with the intended recipient. This incompatibility may arise because of blood group mismatch, positive cross-match tests, or other immunological factors.
To overcome this obstacle, the law permits "swap transplantation" or "paired kidney exchange."
For example:
Donor A wishes to donate a kidney to Recipient A, but they are incompatible.
Donor B wishes to donate a kidney to Recipient B, but they too are incompatible.
However, Donor A may be compatible with Recipient B, and Donor B may be compatible with Recipient A.
In such a situation, the donors exchange recipients, enabling both patients to receive compatible kidneys.
The present case concerned a more complex arrangement involving four donor-recipient pairs, commonly referred to as a "four-way swap transplant."
The Dispute Before the Court
The petitioners consisted of four recipients and four donors, all related to each other as "near relatives" under THOTA.
Because of biological incompatibility within each family pair, the parties proposed a four-way kidney exchange whereby each donor would donate to a compatible recipient from another family.
The Authorisation Committee refused approval. The Appellate Authority upheld that refusal on the ground that Section 9(3A) of THOTA contemplates only a two-way swap between two donor-recipient pairs and does not expressly provide for exchanges involving three, four, or more pairs.
According to the authorities, permitting multi-way swaps would require legislative amendment.
The petitioners challenged this interpretation before the Delhi High Court.
The Core Legal Question
The central issue before the Court was:
Does Section 9(3A) of THOTA permit swap transplantation involving more than two donor-recipient pairs?
The answer would determine whether multi-way kidney exchange programmes could legally operate within the existing statutory framework.
Purpose of THOTA: Preventing Organ Trade, Not Restricting Genuine Donations
Before interpreting Section 9(3A), the Court examined the broader purpose of THOTA.
Relying upon earlier judicial precedents, the Court reiterated that:
The Act is intended primarily to prevent commercial trafficking in human organs.
The law regulates transplantation procedures.
It does not seek to prohibit genuine organ donations motivated by love, affection, or familial relationships.
The central concern of the regulatory authorities is to ensure that no commercial transaction is involved.
The Court emphasised that where the possibility of organ trafficking has been ruled out, authorities should adopt a humane and purposive approach that facilitates life-saving treatment.
Interpreting Section 9(3A)
Section 9(3A) refers to a "first donor" and a "second donor" who are biologically incompatible with their respective near-relative recipients but are compatible with each other's recipients.
The authorities argued that because the provision mentions only a first and second donor, Parliament intended to permit only two-way exchanges.
The Court rejected this interpretation.
According to the Court, the references to "first donor" and "second donor" are merely illustrative and procedural in nature. They explain how a swap transplantation works but do not impose a numerical ceiling on the number of donor-recipient pairs that may participate.
The Court observed that nothing in the language of Section 9(3A) expressly prohibits multi-way exchanges.
Reading such a restriction into the provision would defeat the very object of the legislation.
Purposive Interpretation Over Literal Interpretation
The judgment is an important example of purposive statutory interpretation.
The Court held that statutory provisions must be interpreted in a manner that advances the legislative objective rather than frustrates it.
The objective of Section 9(3A) is to increase the chances of finding compatible donors for patients whose near relatives are willing but medically unsuitable donors.
Restricting the provision to only two donor-recipient pairs would unnecessarily reduce transplantation opportunities and undermine the purpose for which the provision was enacted.
The Court therefore preferred a sensible and practical interpretation over a narrow literal reading.
Importance of Medical Reality
The Court also took note of the practical realities of modern transplant medicine.
Three of the four recipients in the case were highly sensitised patients, making it especially difficult to identify suitable donors.
Multi-way swap programmes significantly increase the pool of potential matches and are internationally recognised as an effective solution to donor-recipient incompatibility.
The Court held that Section 9(3A) should be interpreted in a manner that expands rather than restricts the possibility of identifying compatible donors.
Influence of the Supreme Court's Recent Directions
The Delhi High Court also relied on the Supreme Court's decision in Indian Society of Organ Transplantation v. Union of India (2025).
In that case, the Supreme Court recognised the importance of swap transplantation and directed the National Organ and Tissue Transplantation Organisation (NOTTO) to:
Develop a national swap transplantation policy.
Create uniform guidelines across India.
Establish digital platforms and national registries to facilitate matching of donors and recipients.
The Delhi High Court observed that the Supreme Court's approach clearly favoured expanding opportunities for swap transplantation rather than restricting them.
Emerging National Trend Towards Multi-Way Exchanges
The Court further noted that several States had already begun recognising multi-way swap transplantation.
Karnataka
In April 2026, Karnataka issued administrative guidelines specifically dealing with multi-pair kidney exchange programmes.
The guidelines acknowledged that although THOTA expressly discusses two donor-recipient pairs, there is no legal prohibition against exchanges involving three or more pairs.
Kerala
Kerala's transplant guidelines also contemplate donor matching involving multiple pairs through computer-assisted allocation systems and web-based registries.
These developments demonstrated that medical and regulatory authorities increasingly view multi-way swaps as both lawful and desirable.
The Court's Decision
The Delhi High Court set aside the orders of both the Authorisation Committee and the Appellate Authority.
It held that:
Section 9(3A) does not restrict swap transplantation to only two donor-recipient pairs.
Multi-way swap transplantation is permissible under the existing statutory framework.
The references to "first donor" and "second donor" are illustrative and not restrictive.
The primary requirement remains compliance with safeguards against commercial dealings in organs.
Authorisation Committees may approve multi-way swap arrangements after satisfying themselves regarding all statutory conditions.
The matter was remanded to the Authorisation Committee for reconsideration of the proposed four-way transplant in accordance with the Court's interpretation.
Significance of the Judgment
This decision is likely to have far-reaching implications for organ transplantation in India.
Increased Access to Transplants
Patients who previously had no compatible donor may now benefit from larger matching pools involving multiple donor-recipient pairs.
Better Outcomes for Highly Sensitised Patients
Individuals facing complex immunological barriers stand to gain the most from expanded exchange networks.
Uniform National Approach
The judgment complements the Supreme Court's efforts to create a national framework for swap transplantation.
Humanitarian Interpretation of THOTA
Most importantly, the ruling reinforces the principle that THOTA should be interpreted as a life-saving legislation aimed at preventing organ trade—not as a technical barrier to genuine and ethical transplantation.
Conclusion
The Delhi High Court's decision marks an important evolution in Indian transplant jurisprudence. By recognising the legality of multi-way kidney swap transplantation, the Court has aligned statutory interpretation with medical science, humanitarian considerations, and the broader purpose of THOTA.
The ruling makes it clear that where genuine donors seek to save the lives of their near relatives and no commercial element is involved, the law should facilitate—not obstruct—the possibility of transplantation. As India moves towards a national swap transplantation framework, this judgment is likely to serve as a foundational precedent for future organ exchange programmes across the country.
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