DATE OF ORDER:
30TH MAY,2022
JUDGE(S):
Hon’ble Justice Yashwant Varma
PARTIES:
PETITIONER:NEHA DEVI
RESPONDENT:GOVT OF NCT & ORS
IMPORTANT PROVISION
Transplantation of Human Organs and Tissues Rules, 2014 and the Transplantation of Human Organs Act, 1994
SUBJECT
According to Justice Yashwant Varma, who interpreted relevant provisions of the Transplantation of Human Organs and Tissues Rules, 2014 and the Transplantation of Human Organs Act, 1994, a spouse cannot be recognised in law as having a superior or supervening right to control a personal and conscious decision of the donor.
BRIEF FACTS
- • The Court was hearing a plea from a married woman who wanted to donate her kidney to her ailing father. The petitioner wife claimed that, despite being ready and willing to donate her organ to her ailing father, her application was not being processed because the respondent hospital required a No Objection Certificate from her husband. It was also claimed that the petitioner's relationship with her husband was currently estranged, making obtaining the same impractical or impossible.
- • As a result, the Court concluded that requiring spousal consent for organ donation would violate the petitioner's right to control her own body.
- • Personal and inalienable rights cannot be recognised as being subject to the consent of the spouse. "In any case, a spouse cannot be recognised in law as having a superior or supervening right to control the donor's personal and conscious decision," the Court stated.
- • However, the Court added that the aforementioned would be subject to the caveat of the competent authority duly ascertaining that the consent was freely given and is an informed choice and decision of the donor.
- • Based on a reading of Rule 18 of the Transplantation of Human Organs and Tissues Rules, 2014, the Court concluded that the statute did not contemplate or require spousal consent. At the very least, such a stipulation is not expressly stated in the Rules. Rule 18 also does not contemplate or require obtaining a No Objection Certificate from the proposed donor's spouse. Rule 22, while stating that greater caution should be taken when a donor is a woman, does not require one No Objection Certificate being obtained from the spouse
ISSUE RAISED
Whether the insistence on spousal consent for organ donation would violate the wife's right to control her own body or not?
ANALYSIS BY THE COURT
- • The Court stated "All the said Rule requires is her independent consent to be confirmed by someone other than the beneficiary."
- • The Court went on to say that everything mandated by the Rules is the aspect of independent consent being verified and confirmed "by a person other than the beneficiary." The Court also noted that the petitioner, as a major, was clearly covered by section 2(f) of the Transplantation of Human Organs Act, 1994, which defines a donor as "any person who voluntarily authorises the removal of his/her organ." "The petitioner would also clearly fall within the ambit of Section 2(i) as a close relative by virtue of being the beneficiary's daughter," it said.
CONCLUSION
- • The Court relied on the Supreme Court decision in Common Cause v. Union of India & Anr., in which the right of an individual over his or her own body was recognised as inextricably linked to the right to life itself and the constitutional guarantee of dignified existence while dealing with the issue of euthanasia.
- • As a result, the plea was dismissed with a directive to the respondent hospital to process the petitioner's application and request in accordance with law, keeping in mind the statutory provisions contained in Rules 18 and 22.
Click here to download the original copy of the judgement
