Paridhi Arya
Published on June 1, 2022 at 16:37 IST
The Single Judge Bench of Justice Yashwant Varma while observing provisions of Transplantation of Human Organs and Tissue Rules, 2014 and Transplantation of Human Organs Act, 1994 stated that Consent of spouse if recognized in Law then donor’s personal decision will be suppressed.
The Court observed Spousal Consent in Case of donating an Organ Impinge the control of wife over her own body.
The Petition was filed by married woman whose father is suffering from kidney disorder and she is willing to donate her kidney but the Respondent hospital denying her application on ground that No Objection Certificate (NOC) from the husband is important to Process the Application.
Petitioner submitted that her relationship with her husband is not good and so she cannot take NOC from him.
Court observed “The right which is personal and inalienable cannot be recognized as being subject to the consent of spouse. A spouse, in any case, cannot be recognized in law to have a superior or supervening right to control a personal and conscious decision of the donor.”
Court observed that under Rule 18 of Transplantation of Human Organs and Tissue Rules, 2014 spousal consent is not mandatory.
The Court added that independent Consent is needed to be confirmed mandatorily by any person who cannot be beneficiary.
Court noted that under Section 2(f) of Transplantation of Human Organs Act, 1994 Petitioner being major voluntary can authorize the removal of her organ.
The Court referred the Judgment of Apex Court in Case of Common Cause Vs. Union of India & Anr. where as in Case of Euthanasia, Court recognized the right of individual over own body is connected with right to life enshrined in Constitution.
“In the considered opinion of this Court, the insistence on spousal consent being obtained 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 is taken by the respondent hospital,” Court said.
The Court directed Respondent to process Petitioner’s Application under Rule 18 and 22 of Statutory Provisions.