Spouse's Consent Not Necessary For Organ Donation Especially When Withheld For Extraneous Reasons: Bombay High Court

Spouse’s consent is not a mandatory requirement for organ donation under the Transplantation of Human Organs and Tissues Act, 1994 especially if the consent it being withheld unreasonably or for extraneous reasons, the Bombay High Court held. A division bench comprising Justices Gautam Patel and Neela Gokhale allowed a 55-year-old Pune resident to donate one of his kidneys to his sister’s husband (aged 65) despite objections from his estranged wife. "The Act makes no provisions for a spouse withholding consent unreasonably or for extraneous reasons.... We cannot understand why the insistence on a spousal consent should literally come at the cost of Prasanna’s (donee’s) life," the bench observed. On a petition by the proposed donor and donee, the High Court set aside an order of the Regional Authorisation Committee dated February 24, 2023, declining the proposed kidney donation. The appellate authority’s order from March, 2023 was also set aside. “We do not know how both authorities have read into the Act a mandatory requirement for spousal consent,” the essence of the Act in such cases is for voluntary donation of an organ, the court added. The bench noted that the donor had already undertaken to sufficiently provide for his estranged wife and unmarried daughter. Rule 7 of the Act contemplates a situation where the donor and the recipient are not near relatives. In such a situation the Authorisation Committee must ensure that any adult person related to the donor by blood or marriage of the proposed unrelated donor is interviewed regarding the awareness of the intention to donate an organ. "This has been done," the court said noting that donor Dinesh's mother had attended the Authorisation Committee's interview and consented. The court took exception to the estranged wife's “astonishing” reasons for denying consent. The woman had claimed that the donor had borderline diabetes cholesterol and triglycerides. “Shreya’s objection is astonishing…We are asked to believe that her opinion, evidently coloured by marital disputes, is to override a clinical diagnosis by a recognized affiliated and authorised hospital which has run every single scientific test required till as recently as December 2022 or even thereafter,” the court observed. It added that a vast majority of people who live in Mumbai and Pune suffer from these lifestyle ailments. A medically detailed clinical diagnosis going back to October 2022 and then again on 21st March 2023 held that Dinesh was fit for the procedure. Facts Brother-in-law Dinesh Joshi decided to donate his kidney to Prasanna Joshi, and senior citizen suffering from a renal disease. But it was refused by the Regional Authorisation Committee as Dinesh’s wife failed to show up for the organ donation interview. At the outset the court noted that there is no other suitable donor for Prasanna. His own immediate family wasn’t compatible. He has been suffering from this condition since 2018 and since June 2021 is on daily dialysis, the court noted. It added it was thanks to Dinesh, he had one chance to restore some semblance of normalcy to his life. “Whatever be the marital issues between XXX and Dinesh, we do not see how these can be allowed to come in the way of what is undoubtedly Prasanna’s fundamental right to life under Article 21.This is an aspect that both authorities have completely overlooked and utterly lost sight of. They have chosen instead to give primacy to a private, unstated, unspecified concern of the spouse,” the court said. Case Title:Prasanna Laxmikant Joshi and Anr. v. State of Maharastra and Ors.Citation: 2023 LiveLaw (Bom) 219Click Here To Read/Download The Order

Spouse's Consent Not Necessary For Organ Donation Especially When Withheld For Extraneous Reasons: Bombay High Court

Sharmeen Hakim

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