Insistence Of Spousal Consent For Organ Donation Would Impinge Upon Wife's Right To Be In Control Of Her Own Body: Delhi High Court

The Delhi High Court has observed that insistence of spousal consent for organ donation would impinge upon the right of the wife to be in control of her own body.

Interpreting relevant provisions of Transplantation of Human Organs and Tissues Rules, 2014 as well as Transplantation of Human Organs Act, 1994, Justice Yashwant Varma further added that a spouse cannot be recognised in law to have a superior or supervening right to control a personal and conscious decision of the donor.

The Court was dealing with a plea filed by a married woman seeking to donate her kidney to her ailing father. The petitioner wife had alleged that although she was ready and willing to donate her organ to her ailing father, her application was not being processed since the respondent hospital was insisting on a submission of a No Objection Certificate from her husband.

It was further alleged that the relationship between the petitioner and her husband were presently estranged and consequently it would not be practical or possible to obtain the same.

The Court therefore observed that the insistence on spousal consent for organ donation would impinge upon the petitioner's right to be in control of her own body.

"That right which is personal and inalienable cannot be recognised as being subject to the consent of the spouse. A spouse, in any case, cannot be recognised in law to have a superior or supervening right to control a personal and conscious decision of the donor," the Court said.

However, the Court added that the aforesaid would necessarily be subject to the caveat of the competent authority duly ascertaining that the consent has been given freely and is an informed choice and decision of the donor.

On a reading of Rule 18 of Transplantation of Human Organs and Tissues Rules, 2014, the Court opined that the statute did not contemplate or mandate spousal consent being obtained.

"At least such a stipulation does not stand expressly engrafted in the Rules. Rule 18 also does not envisage or mandate a No Objection Certificate being obtained from the spouse of the proposed donor. Rule 22, while prescribing that in case where a donor is a woman greater precaution ought to be exercised, also does not mandate a No Objection Certificate being obtained from the spouse. All that the said Rule requires is her independent consent being confirmed by a person other than the beneficiary," the Court said.

The Court added that all that the provision in the said Rules mandate is the facet of independent consent being verified and confirmed "by a person other than the beneficiary".

The Court further noted the petitioner being a major, was clearly covered by sec. 2(f) of Transplantation of Human Organs Act, 1994 which defines a donor to mean any person who voluntarily authorises the removal of his/her organ.

"The petitioner would also clearly fall in the ambit of Section 2(i) as a near relative by virtue of being the daughter of the beneficiary," it said.

The Court also relief on the Supreme Court decision in Common Cause v. Union of India & Anr. wherein while dealing with the issue of euthanasia, it was recognised the right of an individual over his/her own body and the same being inextricably connected to the right to life itself and the constitutional guarantee of dignified existence.

"In the considered opinion of this Court, the insistence on spousal consent being obtained is clearly ultra vires the provisions of the Act. In the absence of any statutorily ordained requirement of spousal consent being engrafted in the Act, the Court finds itself unable to countenance the objection taken by the respondent hospital," the Court said.

Accordingly, the plea was disposed of with a direction to the respondent hospital to process the application and request as made by the petitioner in accordance with law bearing in mind the statutory provisions contained in Rules 18 and 22.

"The application of the petitioner may be duly examined and placed before the competent authority of the hospital. The Court only observes that the aforesaid application shall not be denied solely on the ground that it is not accompanied with a No Objection Certificate of the spouse of the petitioner," the Court added.

Case Title: NEHA DEVI v. GOVT OF NCT OF DELHI & ORS.

Citation: 2022 LiveLaw (Del) 523

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