Court allows woman to donate kidney to her father without husband’s consent

“This would necessarily be subject to the caveat of the competent authority duly ascertaining that the consent has been given freely, and is an informed choice and decision of the donor,” said the court, while directing the hospital to process her application in accordance with rules without insisting on no-objection certificate from the husband.

Justice Yashwant Varma said the insistence on spousal consent is “clearly ultra vires” the provisions of the relevant law. The court further said the right to be in control of her own body is “personal and inalienable,” and cannot be recognised as being subject to the consent of the spouse.

“In the absence of any statutorily ordained requirement of spousal consent being engrafted in the Transplantation of Human Organs Act, the court finds itself unable to countenance the objection taken by the respondent hospital. More fundamentally, insistence on such a requirement would also impinge upon the right of the petitioner to be in control of her own body,” said the court in a judgment on May 30.

The woman had approached with a petition alleging that although she is ready to donate her organ to her ailing father, her application was not being processed by the hospital since it is insisting on a no-objection certificate from her husband. The court was further told that the couple are estranged and thus it would not be possible to obtain the consent.

The court said that Rule 18 of the Transplantation of Human Organs and Tissues Rules, 2014 does not mandate spousal consent: “Rule 22, while prescribing that if a donor is a woman greater precaution ought to be exercised, also does not mandate a no-objection certificate being obtained from the spouse.”