The High Court of Kerala on Monday (28/03/16) has ruled that the consent of a spouse is not a statutory requirement, for making organ donation in case of transplantation amongst non related persons.The ruling was delivered by a bench comprising of Justice C.K.Abdul Rehim and Justice Shaji.P Chaly in Basheer v State of Kerala &others.
The order was issued in a writ petition seeking issuance of Habeas Corpus filed by one Mr Basheer, the father of the minor girl Aliya Fathima,aged 9 months. It was averred in the petition, that the mother and maternal grand parents of child had kept her in illegal custody without caring for her life ignoring the fact that the girl had to undergo an immediate liver transplantation surgery.The girl had been admitted to a hospital, pursuant to an earlier direction issued by the court.
A consenting donor one Mrs. Sree Rani was identified as potential donor for the child. When the matter was about to be processed, before ‘Zonal authorization committee for organ transplantation’, the husband of the donor backed away from the consent he had given for organ transplantation. In such circumstances, the hospital authorities, informed the court that further steps could not be processed before the committee for want of consent from the spouse of the potential donor. According to the hospital authorities, it was mandatory on the part of the spouse of the donor of the human organ, also to give consent for processing the application before the committee.
The court on an examination of the relevant provisions of the Transplantation of Human Organs and Tissues Act, 1994 and rules repelled the technical arguments presented by the hospital authorities in this regard. The court opined that there is neither any provision under the act, nor the rules which mandate consent of the spouse of the donor for carrying organ transplantation. The bench held: -
“On an appreciation of relevant provisions contained in the Transplantation of Human Organs and Tissues Act, 1994 as well as Rules framed there under, we do not find any such insistence for consent of the spouse of the donor. Going through Rules 3 and 5 of the Transplantation of Human Organs and Tissues Rules, 2014 as well as Form no:3 and Forms No:11 there under, we could not find any such insistence. What is mentioned in the instructions appended to Form no:11 is that, in case of proposed transplant between non-related persons, appropriate evidence of avocation and income of the donor and the recipient for the last 3 years need to be produced. As per the Forms, it is only necessary to give consent of the donor attested by identifiable witnesses. Therefore, this court is of the opinion that there is no statutory requirement for a spouse of the donor to give consent for donation of an organ in case of non related persons.”
The court thereafter directed the hospital authorities to submit the application forthwith to the committee. The committee who had been suo moto impleaded ,has been directed to process the application and to give clearance for organ donation within a period of 5 days from the date of receipt of such application.The matter has been next posted for further consideration to 04/04/16.