Insistence of spousal consent for organ donation would impinge on wife's right to control her own body - India Court
The Court was dealing with a plea filed by a married woman seeking to donate her kidney to her ailing father.
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.
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.
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.
