Madhya Pradesh High Court allows man to donate part of liver to his brother overruling wife's objection

The Madhya Pradesh High Court recently permitted a man to donate a part of his liver tissue to his ailing brother while ordering the authorities to ignore the objection raised by the donor’s wife. [Vikas Agarwal v. State of Madhya Pradesh].Justice Raj Mohan Singh said the petitioner (donor) being a master of his own choice cannot be put to an intrusive action by anyone including his wife. “The caveat put by his wife cannot be taken to be a rider on the right of the petitioner No.1. The objection by the wife of the petitioner No.1 may be a societal norm to keep her marital status healthy and alive but by undergoing transplant of liver, the respondent No.4 cannot forsee that in every likelihood, her husband may die,” the Single Judge said..The Court also reasoned that organ donations are now successfully taking place because of medical advancement and that the perception of the donor’s wife cannot be weighed over and above the donor's own desire to save the life of his brother.“The objection raised by the respondent No.4 [donor’s wife] 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 [wife] is pitted against such a perception of the respondent No.4 [donor’s wife], then the individual right of the petitioner No.1 [donor] has to be given preference,” the Court said. .The donor, 33-year-old Vikas Agrawal, approached the Court after Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute refused to perform the liver transplant on account of the objection raised by his wife Shilpa Agrawal.It was submitted before the Court that the petitioner’s brother Vivek Agrawal is in critical stage of health and thus he has voluntarily authorized the removal of his organ under the Transplantation of Human Organs and Tissues Act. The Court was also told that the petitioner was found fit for the procedure but due to his wife’s objection, the transplant could not be done. Despite notice, the petitioner’s wife did not appear in Court and was thus proceeded ex-parte..On the question of whether the consent of petitioner’s wife would be required for living donor liver transplant, the Court said that the Rules mandate the assent of the next of kin of the donor. However, after looking into the legal position, the Court concluded that the petitioner’s action cannot be held to be illegal.It went on to quote Albert Camus, a French philosopher and a Nobel laureate in literature, who said the following,“The only way to deal with an unfree world is to become so absolutely free that your very existence is an act of rebellion.”.In this context, the Court observed that if the lines penned by Camus are read in conjunction with the facts and circumstances of the case, it would lead to “the conclusion that the act of the petitioner No.1 in donating his liver to his ailing brother does not become an illegality, warranting intrusive action by the State.”Thus, the Court deemed it appropriate to issue a writ of mandamus that objection raised by the petitioner’s wife be not taken into consideration for the purpose of transplanting part of his liver to his brother.“Accordingly, I permit the petitioners to proceed with the transplantation of liver from the petitioner No.1 to his brother/patient at the respondent No.2/the hospital, who has already completed all the necessary formalities. Let the procedure be conducted at the earliest,” ordered the Court..Advocate Prakash Upadhyay represented the petitioner.Advocate S Rairada appeared for the Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute.Advocate Swatanta Pandey represented the State. [Read Judgment]