NOC From Husband Not Required For Wife To Donate Kidney: Madhya Pradesh High Court

Justice Purushaindra Kumar Kaurav was dealing with a writ petition filed by the Petitioner who was aggrieved by the communication from the Hospital, whereby it had rejected her request for a kidney transplant.

The case of the Petitioner was that her son was suffering from from CKD V and was on dialysis. She wanted to donate him her kidney. However, unless there was approval by the Authorization Committee, as mandated U/S 9 of the Transplantation of Human Organs and Tissues Act, 1994 (for short hereinafter referred to as "Act of 1994"), the kidney of her son could not be transplanted. She made a request to the Hospital but it did not forward her case for approval of the Authorization Committee and rejected her application on the ground that her husband had not given consent for kidney donation.

The Petitioner submitted that as per the mandate of Act of 1994 or rules made thereunder, there was no such requirement of consent of her husband for donation of kidney to her own son. She was a prospective donor and had been found to be medically fit for kidney donation after all the medical tests. However, on account of non-signing of the consent by her husband, the matter was not forwarded to the Authorization Committee. Therefore, the transplantation of kidney of her son could not take place. She relied on the decision of the Apex Court in Kuldeep Singh & Anr. v. State of T.N. & Ors. to contend that such a matter needs to be given utmost priority and ought be decided by the Authorization Committee as early as possible.

Examining the provisions U/S 9 of the Act of 1994 and Rule 6 of The Transplant of Human Rules, 1995, the Court held-

The perusal of the schemes under the Act and the Rules as referred above shows that the Authorization Committee has to record its satisfaction that the applicants have complied with all the requirements of the Act and Rules made there under. Under such circumstances, the rejection of the request by the respondent/Hospital on the ground of non-issuance of the NOC by the husband of the petitioner is not sustainable and therefore, the same is set aside.

The Court, accordingly, directed the Hospital to immediately comply with all the requirements at its end and send the matter to the Authorization Committee by 17.02.2022 for taking appropriate decision, in accordance with the mandates of the Act and the Rules made thereunder. Furthermore, the Authorization Committee was directed to take the decision on the request of the Petitioner, as early as possible, since the issue was related to the life of her son.

Case Title: Meena Devi v. State of Madhya Pradesh

Case citation: 2022 LiveLaw (MP) 37