Bombay High Court Disallows Mentally-Challenged Boy From Donating Kidney To Ailing Brother

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Bombay High Court Disallows Mentally-Challenged Boy From Donating Kidney To Ailing Brother
Bombay High Court Disallows Mentally-Challenged Boy From Donating Kidney To Ailing Brother

The Bombay High Court has turned down a plea filed by parents seeking permission for their mentally-challenged minor boy to donate one of his kidney’s to his ailing brother.

 

The family argued this would enable the ailing brother to recover who will then be able to  take care of the disabled boy.

Kidney Donation Is Without Coercion

 

The plea was filed by the parents as well as both the sons and asked permission for the disabled brother to act as a kidney donor based on the claim that despite him suffering from “mild and moderate retardation”  he was fit enough to take a decision for himself.

 

The parents have claimed that there was no “forced consent” and the  mentally-challenged boy could be a donor as per the Transplantation of Human Organs and Tissues Act, 1994.

The bench comprising Justices RM Borde and Vibha Kankanwadi however spoke to the boy in private capacity and arrived at the conclusion that the disabled body was not fully understanding of the consequences of his act and that his decision-making ability was “severely affected”.

Boy Not Capable Of Making Decisions

The court has accordingly ruled that the “best interest test” as presented by the parents was not applicable in this case since the donor was not intellectually able to comprehend how his life would change after he donates a kidney, as required under Section 2(f) of Transplantation of Human Organs and Tissues Act, 1994 .

The bench also dismissed the argument of “informed consent” stating that the disabled boy was in no condition to provide informed consent with respect to complex issues such as kidney donation.

It ruled that the boy was not someone in a position to ”voluntarily authorize removal of his organ or tissues”.

The court also pointed out that under Section 9 of the 1994 Act, removal and transplantation of organs was  an ‘absolute prohibition’ in cases related to mentally-challenged persons, and therefore the disabled boy could not be a donor for his brother.

 

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