Madhya Pradesh High Court Permits Liver Transplant Despite Objection By Donor's Wife
In a pertinent decision, Madhya Pradesh High Court has upheld a man's right to donate a part of his liver tissue to his ailing brother, despite the strong objections recorded by the donor's wife prior to authorisation.The single-judge bench of Justice Raj Mohan Singh held that the donor is a 'master of his own choice' and he cannot be subjected to any intrusive action, even by his wife. ...
In a pertinent decision, Madhya Pradesh High Court has upheld a man's right to donate a part of his liver tissue to his ailing brother, despite the strong objections recorded by the donor's wife prior to authorisation.
The single-judge bench of Justice Raj Mohan Singh held that the donor is a 'master of his own choice' and he cannot be subjected to any intrusive action, even by his wife. Though the wife may have merely intended to preserve her marital status due to her apprehension about the consequences of the transplant and as per the laid down societal norms, it is not certain that her husband will die thereafter, the court observed.
“…The caveat put by his wife cannot be taken to be a rider on the right of the petitioner No.1…. the perception of the respondent No.4 cannot be over weighed over and above the desire of the petitioner No.1, who intends to save the life of his brother by donating his part of the liver…”, the bench sitting at Jabalpur noted in the concluding part of the order.
The court also quoted the French Philosopher Alber Camus which says: “The only way to deal with an unfree world is to become so absolutely free that your very existence is an act of rebellion”. This was done in order to elucidate the rights that an individual has in a liberal democracy like India. The court wanted to make it clear that a man can act in any manner he pleases, as long as it's not in contravention of the law, in spite of that certain action being frowned upon by the rest of society.
“…the objection raised by the respondent No.4 may be based on some apprehension in the contest of societal norms of keeping her Suhag healthy, alive and free from any risk, but if the individual right of the petitioner No.1 is pitted against such a perception of the respondent No.4, then the individual right of the petitioner No.1 has to be given preference”, the court underscored that the petitioner is entitled to a writ of mandamus as prayed for.
Hence, the court directed Respondent No.2, Kokilaben Dhirubhai Ambani Hospital, to ignore the objection raised by Respondent No.4 wife while proceeding with the liver transplantation of two genetically related individuals such as the petitioner and his brother. It was already found by the Hospital that the medical fitness of the donor was satisfactory for further proceedings, and the donor has met all the medical criteria for transplantation in the tests conducted so far.
While allowing the petition filed by the donor brother and the wife of the recipient, to buttress the proposition that societal norms cannot invariably compel individual behaviour to align with societal expectations, the court placed extensive reliance on landmark case laws such as Shashimani Mishra & Anr. v. State of MP & Ors., ILR [2019] MP 1397 and Prasanna Laxmikant Joshi & Anr. v. State of Maharashtra, 2023 LiveLaw (Bom) 2019. In the latter decision, Bombay High Court held that a spouse's consent is not a mandatory requirement for organ donation under the Transplantation of Human Organs and Tissues Act, 1994, especially if the consent is being withheld unreasonably or for extraneous reasons. Back then, the court had stated that the essence of the 1994 Act is the voluntary donation of an organ by a living donor.
On 18.01.2024, when the relatives of the brother with chronic liver disease reached the hospital with the required papers despite the objection from the Donor's wife, the respondent hospital refused to accept the request. The request was rejected on the pretext that Organs Transplantation Rules, 2014 mandate assent of the next of kin for such a procedure.
Before the High Court, the counsel for the petitioners had drawn the court's attention to the relevant provisions of the 1994 Act and 2014 Rules. It was submitted by the counsel that Section 3 of the Act [Authority for removal of human organs or tissues or more] r/w Rule 18 [Procedure in case of near relatives] of the 2014 Rules indicate that the petitioner-brother alone is competent to give consent for transplantation of his own liver tissue to his brother. It was also pleaded that the ailing brother is likely to succumb to death due to his worsening condition unless the liver transplant is carried out immediately.
The respondent no.4, i.e., the petitioner's wife, did not appear and she was set ex-parte in the writ petition before the High Court.
The proposed transplant is voluntary and intended for the therapeutic purpose of a near-relative as per sub-sections 1 & 2 of Section 3, the court initially noted. Rule 2(c) of Organs Transplantation Rules, 2014 also designates the hospital carrying out the transplantation as the 'competent authority'. Additionally, in the case of a living near-related donor, Rule 3(c) of the 2014 Rules denotes that a living person can authorise the removal of any organ or tissue from his/her/their body for therapeutic purposes in Form 1. Apart from the constitution of the authorisation committee mentioned in Rule 7, an additional regulation applicable would be Rule 18 which speaks about the procedure in the case of near relatives. It includes the evaluation of documentary evidence of the relationship between donor and recipient as well as documentary evidence of the identity and residence of the proposed donor.
The petitioners' counsel argued that the donor had already made full compliance with all the requirements as laid down in the law. The organ transplantation has not materialised due to the objections raised by the wife, all while the brother of the petitioner has reached the advanced stage of liver disease, it was contended by the counsel.
The court issued a writ of mandamus that the objection raised by respondent No.4 should not be taken into consideration by the hospital, to transplant part of the liver between petitioner No.1 and his brother/patient, who are genetically related.
After perusing the arguments put forth by the counsel, the court also opined that the consent of wife is not instrumental for sanctioning a liver transplant. When the petitioner has come forward voluntarily as a donor for the liver transplant, the same can't be disregarded merely based on the objection raised by the wife, the court held.
Advocate Prakash Upadhyay appeared for the two petitioners. S. Rairada was the advocate for Respondent No.2 hospital. Advocate Swatanta Pandey appeared as the panel lawyer for the Respondent/State.
Case Title: Vikas Agrawal & Anr v. State Of Madhya Pradesh Through Principal Secretary & Ors
Case No: Writ Petition No.870 of 2024
Citation: 2024 LiveLaw (MP) 30