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Spousal consent for organ donation is not essential under the Transplantation of Human Organs and Tissues Act, 1994: Delhi High Court

The Delhi High Court upheld the personal and inalienable nature of the right to organ donation through Justice Yashwant Verma in the case of Neha Devi v. Govt. NCT Delhi (W.P.(C) 8671/2022)

FACTS OF THE CASE:

The petitioner decided to give her sick father her kidney. The petitioner claimed that despite her readiness and willingness to give an organ to her sick father, the respondent hospital is delaying the processing of her application because they need her husband’s no-objection certificate. Furthermore, it was alleged that the relationship between the petitioner and her husband was estranged and consequently it would not be practical or possible to obtain the same.

The question before the Court was whether the act of the respondent would be valid in accordance with Rule 18 of the Transplantation of Human Organs and Tissues Rules, 2014.

JUDGEMENT:

The Court ruled that, when reading Rule 18, it is evident that clauses I and (ii) of the Rule must be followed when the intended transplant is to be performed by a close relative, which would include a daughter.

The Court concluded that it is apparent that spousal consent is not contemplated or required by the Act. At least, the Rules do not expressly include such a requirement. Additionally, Rule 18 does not suggest or require obtaining a No Objection Certificate from the intended donor’s spouse. Rule 22 does not require a No Objection Certificate to be sought from the husband, although stating that greater caution should be taken when a donor is a woman. The only thing that the aforementioned Rule demands is that her independent consent be verified by someone other than the beneficiary.

The Court also recognizes that, in cases involving close relatives, it is important to determine whether the donor has come forward voluntarily and has provided the organ out of “affection and attachment with the beneficiary.”

The Court further points out that Section 2(f) defines a donor as any person who willingly consents to have an organ removed. The aforementioned law plainly covers the petitioner because he is a major. As the beneficiary’s daughter, the petitioner would undoubtedly qualify as a close relative under Section 2(i).

Thus, the petitioner’s application was to be reevaluated by the respondents, who were instructed not to dismiss it for the only reason that the spouse’s no-objection certificate was unavailable.

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JUDGEMENT REVIEWED BY REETI SHETTY

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