The Bombay High Court has refused a plea seeking permission to a ‘mentally challenged’ person to donate his kidney to his brother.
The parents and two sons had approached the high court, contending that one son, who is mentally challenged, can be donor for removal of his organs or tissues within meaning to section 2(f) of the Transplantation of Human Organs and Tissues Act, 1994. They contended that in the event of donor suffering from condition of mild or moderate mental retardation, it can be adjudged as to whether he is in a position to take decision for himself or is mindful of his own acts or that whether he is in a position to give informed consent.
It was also contended before the court, invoking “best interest test”, that since it is in the best interest of the mentally retarded donor as well as his brother who is suffering from kidney disease, the former be accorded permission to donate his kidney. According to them, survival of the brother who is suffering from kidney disease would be beneficial for the person who is mentally retarded since he would be looked after properly by his brother.
However, the court said that the principles in common law jurisdiction based upon “best interest test” cannot be made applicable in view of specific provisions in the Transplantation of Human Organs and Tissues Act, 1994.
Interviewing the person in chambers, the bench comprising Justice RM Borde and Justice Vibha Kankanwadi said he was not in a position to understand the questions put to him and is incapable of understanding the consequences of his act and that his decision-making power is severely impaired. He is not an individual who is in a position to voluntarily authorise removal of his organ or tissues, the bench said.
The bench then observed: “The restriction on removal and transplantation of human organs or tissues or both contained in sub-section (1-C) of section 9 of the Act in respect of mentally challenged person is an absolute prohibition. The Statutory provision is couched in negative language and as such shall have to be construed mandatory.”