The Bombay High Court allowed a case where a 55-year-old man from Pune wanted to donate one of his kidneys to his sister's husband (who was 65), despite his estranged wife's objections.
A division bench of this Court comprising Justice Justice Neela Gokhale and G.S. Patel held that according to the Transplantation of Human Organs and Tissues Act, 1994, it is not necessary to have the permission of a spouse for organ donation.
Brief Facts:
This is a case of an organ donation being opposed by the estranged spouse of the donor. The two Petitioners are brothers-in-law. The Petition here is a governing statute for cases like these and this is the Transplantation of Human Organs and Tissues Act, 1994 (“the Act”). The Petition assails an appellate order of 15th March 2023 upholding an order of 24th February 2023 passed by the 2nd Respondent declining to approve the proposed kidney donation by Dinesh to Prasanna.
Prasanna requires dialysis daily from June 2021. He has not found a suitable donor for a kidney transplant. On 22nd September 2022, both Prasanna and Dinesh underwent various tests for compatibility. Copies of some of these reports are annexed to the Petition. Dinesh’s kidneys were found to be normal and by a later report of 6th October 2022, it was found that Dinesh was an appropriate match or a donor for Prasanna for receiving a kidney transplant. On 5th December 2022, Prasanna and Dinesh made a joint application under the Act and its Rules. On 28th December 2022, the Deenanath Mangeshkar Hospital noted that Shreya, the wife of Dinesh, had not granted her consent.
Both Petitioners wrote to the 2nd Respondent through the Hospital pointing out that nothing in the Act or the Rules required the affirmative consent from “near relatives” including spousal consent. As long as there was a willing donor and a willing recipient, no question arose of a consent of a near relative. On 24th February 2023, the 2nd Respondent rejected the joint application by Dinesh and Prasanna on the ground that Shreya and the unmarried daughter did not attend the interview and had not consented to the kidney donation. Prasanna appealed to the 1st Respondent, the Appellate Authority under Section 17. By the impugned order of 15th March 2023 the Appeal was rejected and the order in original of 24th February 2023 was upheld. Both the orders are challenged in this Petition.
Observations of the Court:
This Court after the perusal of the act noted that the Act makes no provisions for a spouse withholding consent even unreasonably or for extraneous reasons. Dinesh has already filed an Affidavit and made a comprehensive statement that his estranged spouse and unmarried. The Court emphasized Rule 7 which contemplates a situation where the donor and the recipient are not near relatives. It sets out what the Authorisation Committee is to do and item 9 of that list tells us that it must ensure that any adult person related to the donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness of the intention to donate an organ. The Court did not know how both authorities have read into the Act a mandatory requirement for spousal consent.
Therefore, the Court held that neither of these orders can be sustained. They are contrary to the Act. They are clearly arbitrary and do not take into account the only relevant factors. They take into account something completely unnecessary and not contemplated by the statute.
The decision of the Court:
The Bombay High Court granted the permission to the 2nd Respondent to donate his organ to the Petitioner and held that no objection from the 3rd Respondent, Shreya is to be entertained by any of the authorities under any circumstances.
Case Title: Prasanna Laxmikant Joshi and Anr. v. State of Maharastra and Ors.
Coram: Hon’ble Justice Neela Gokhale and G.S. Patel
Case no.: WRIT PETITION (ST) NO. 9276 OF 2023
Advocate for the Petitioner: Mr YS Jahagirdar, Senior Advocate
Advocate for the Respondent: Mr PP Kakade, GP, with Ms PN Diwan, AGP
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