The right to control one's own body, including the decision to donate organs, is a personal and inalienable right that cannot be subject to the consent of a spouse.

ORDER

1. This writ petition has been preferred seeking the following reliefs:-

i) Directing the respondents no.1 to 3 to permit the petitioner to give her Kidney to her father Sh. Gulab Singh without obtaining consent, permission and authorization from her husband Sh. Dharmender;

ii) Directing the respondents no.1 to 3 to conduct the operation of Sh. Gulab Singh on an early date as the given date 03.06.2022 is too long;

2. The petitioner seeks to donate her kidney to her ailing father. Along with the writ petition, the relevant medical records have also been placed and which suggest that a transplant is recommended. The petitioner alleges that although she is ready and willing to donate her organ to her ailing father, her application is not being processed since the respondent hospital is insisting on a submission of a No Objection Certificate from her husband.

3. It is further alleged that the relationship between the petitioner and her husband are presently estranged and consequently it would not be practical or possible to obtain the same.

4. In the considered view of this Court, the question which stands posited would have to be essentially answered on the anvil of Rule 18 of the Transplantation of Human Organs and Tissues Rules, 2014 which reads thus:-

18. Procedure in case of near relatives. - (1) Where the proposed transplant of organs is between near relatives related genetically, namely, grandmother, grandfather, mother, father, brother, sister, son, daughter, grandson and granddaughter, above the age of eighteen years, the competent authority as defined at rule 2(c) or Authorization Committee (in case donor or recipient is a foreigner) shall evaluate: -

(i) documentary evidence of relationship e.g. relevant birth certificates, marriage certificate, other relationship certificate from Tehsildar or Sub-divisional magistrate or Metropolitan Magistrate or Sarpanch of the Panchayat, or similar other identity certificates like Electors Photo Identity Card or AADHAAR card; and

(ii) documentary evidence of identity and residence of the proposed donor, ration card or voters identity card or passport or driving license or PAN card or bank account and family photograph depicting the proposed donor and the proposed recipient along with another near relative, or similar other identity certificates like AADHAAR Card (issued by Unique Identification Authority of India).

(2) If in the opinion of the competent authority, the relationship is not conclusively established after evaluating the above evidence, it may in its discretion direct further medical test, namely, Deoxyribonucleic Acid (DNA) Profiling.

(3) The test referred to in sub-rule (2) shall be got done from a laboratory accredited with National Accreditation Board for Testing and Calibration Laboratories and certificate shall be given in Form 5.

(4) If the documentary evidences and test referred to in sub-rules (1) and (2), respectively do not establish a genetic relationship between the donor and the recipient, the same procedure be adopted on preferably both or at least one parent, and if parents are not available, the same procedure be adopted on such relatives of donor and recipient as are available and are willing to be tested, failing which, genetic relationship between the donor and the recipient will be deemed to have not been established.

(5) Where the proposed transplant is between a married couple the competent authority or Authorization Committee (in case donor or recipient is a foreigner) must evaluate the factum and duration of marriage and ensure that documents such as marriage certificate, marriage photograph etc. are kept for records along with the information on the number and age of children and a family photograph depicting the entire family, birth certificate of children containing the particulars of parents and issue a certificate in Form 6 (for spousal donor).

(6) Any document with regard to the proof of residence or domicile and particulars of parentage should be