[Transportation of Human Organs and Tissues Rules] Insistence of spousal consent is clearly ‘ultra vires’: Delhi High Court in organ donation case

The Delhi High Court recently observed that the insistence of spousal consent being obtained is clearly ‘ultra vires’ to the provisions of Transportation of Human Organs and Tissues Rules, 2014, and would also impinge upon the right of the woman to be in control of her own body.

A single judge bench of Justice Yashwant Varma while interpreting the pertinent provisions of Transportation of Human Organs and Tissues Rules, 2014 as well as Transplantation of Human Organs Act, 1994, stated that it is evident that the statute does not contemplate or mandate spousal consent being obtained.

Justice Varma further stated, “At least such a stipulation does not stand expressly engrafted in the Rules. Rule 18 (procedure in case of near relatives) also does not mandate a ‘No Objection Certificate’ being obtained from the spouse of the proposed donor. Rule 22 (precautions in case of woman donor), while prescribing that in a 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."

Court was dealing with a petition by a married woman seeking to donate her kidney to her ailing father. The petitioner alleged that although she is ready and willing to donate her organ to her ailing father, her application is not being processed since the respondent hospital insists on submitting a 'No Objection Certificate' from her husband.

She further alleged that the relationship between her and her husband is presently estranged and consequently it would not be practical or possible to obtain the same.

Court opined, “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.”

Court further added, “More fundamentally, insistence on such a requirement would also impinge upon the right of the petitioner to be in control of her own body and that right which is personal and inalienable cannot be recognized as being subject to the consent of the spouse.”

Court relied on an Apex Court judgment in Common Cause (A regd. Society) v. Union of India and Anr. (2018) wherein the constitutional bench while dealing with the issue of euthanasia, recognized 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 a dignified existence.

Accordingly, Court disposed of the petition directing the respondent hospital to process the application on the request made by the petitioner by keeping in mind the law of 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 and 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,” added the Court.

Case Title: Neha Devi v. Govt of NGT of Delhi and Ors.