Bombay High Court allows kidney donation by estranged husband, sets aside Maharashtra govt's refusal based on spouse's consent

The Bombay High Court on Wednesday set aside an order of the Maharashtra State government refusing to allow an organ donation on the ground that the donor's estranged wife refused to grant her consent for husband's voluntary kidney donation. 

A bench of Justices GS Patel and Neela Gokhale noted that the Transplantation of Human Organs and Tissues Act makes no provisions for a spouse withholding consent even unreasonably or for extraneous reasons.

The Court was hearing a challenge to an order of March 15 which upheld an earlier order by the Regional Authorisation Committee declining approval for a proposed kidney donation by Dinesh to Prasanna, the petitioners. Dinesh, Prasanna's brother-in-law, voluntarily wished to donate his kidney and they underwent various tests for compatibility. Dinesh’s kidneys were found to be normal and by a later report, it was found that he was an appropriate match. 

A hospital in Pune recommended that Dinesh could proceed with the necessary surgery. Prasanna, his wife and Dinesh affirmed affidavits confirming their relationship and the arrangement that they were proposing to make for the kidney transplant. The petitioners made a joint application under the Act and its Rules, which was necessary to obtain approval for the transplantation of the kidney.

Subsequently, Dinesh and Prasanna were interviewed by the Ethics Committee of the hospital. Dinesh's family members were also called to that interview including Dinesh's wife, Shreya. She, however, refused to attend the interview and also did not attend another interview conducted at a later stage. The Committee wrote to the hospital demanding that consent be obtained from Shreya as well. 

Both the petitioners protested on the ground that nothing in the Act or the Rules require the affirmative consent from “near relatives”, including spousal consent.

However, the Committee rejected the joint application on the ground that Shreya and her daughter with Dinesh did not attend the interview and had not consented to the kidney donation. The petitioners appealed to the State government but the government too rejected their application. Hence, they moved the High Court.

The Court questioned how both authorities had read into the Act a mandatory requirement for spousal consent. It noted that there was no other suitable donor as Prasanna's own immediate family was found to be incompatible. It further noted that the prospective donor, Dinesh, had already filed an affidavit stating that his estranged spouse and unmarried daughter were provided for.

The Court said that the marital issues between Shreya and Dinesh could not come in the way of what was undoubtedly Prasanna's fundamental right to life under Article 21. It recorded that the aspect was overlooked by both authorities by choosing to give primacy to a private, unstated, unspecified concern.

Noting that Shreya was given every opportunity to attend the interview, the Court opined that she stood to lose nothing, as Dinesh had clarified that he had provisioned for her and her unmarried daughter. Thus, it determined that it was not open to Shreya to defeat the entire process by simply staying away and somehow getting the authorities to believe that her consent was necessary.

Therefore, the Court allowed the petition.

Case: Prasanna Laxmikant Joshi & Anr vs State of Maharashtra & Ors

Counsel for Applicant: Senior Adv. YS Jahagirdar & Others

Counsel for Opposite Party: Adv. PP Kakade & Others

Order Date: 27.04.2023