Case Title: Neha Devi v. Govt. of NCT & ors
The Delhi High Court 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.
The facts of the instant case are that a married woman was seeking to donate her kidney to her ailing father. She 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 the submission of a No Objection Certificate from her husband. It was further brought to light that there are estranged relations between the couple, owing to which it is impossible to obtain consent from the husband.
The Court observed that “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 further noted that a bare 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. It observed that, "At least such a stipulation does not stand expressly engrafted in the Rules. Rule 18 also does not envisage or mandate a No Objection Certificate being obtained from the spouse of the proposed donor. Rule 22, while prescribing that in 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. All that the said Rule requires is her independent consent being confirmed by a person other than the beneficiary."
While allowing the petition, the court also referred to Common Cause v. Union of India & Anr. wherein the top court while dealing with the issue of euthanasia, recognised 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. It observed that-
“In the considered opinion of this Court, the insistence on spousal consent being obtained is 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 taken by the respondent hospital.”