Bombay HC Refuses to Allow Disabled Boy From Donating Kidney to Brother

Mumbai: The Bombay High Court recently rejected a plea where the parents urged the court to allow their mentally-challenged minor boy to donate a kidney to his ailing brother. The reason that the family cited was that when the ailing brother recovers with the new kidney, he would take care of the mentally-challenged boy.

The parents and both their sons moved court seeking permission for the disabled boy to be a kidney donor based on the claim that he was suffering a “mild and moderate retardation” and that he was fit to take a decision for himself. The parents claimed that there was no “forced consent” in this.

However, the bench of Justices RM Borde and Vibha Kankanwadi spoke to the boy in private capacity and came to the conclusion that he did not understand the consequences of his act and that his decision making ability was “severely affected”.

The court ruled that the “best interest test” as invoked by the parents cannot be applied in this case as the donor was not in a position to understand what would his life be like after he donates a kidney.

Parents contended that the mentally-challenged boy could be a donor in accordance with the Transplantation of Human Organs and Tissues Act, 1994.

However, the court ruled that principles in common law jurisdiction based upon “best interest test” cannot be made applicable in view of Section 2(f) of Transplantation of Human Organs and Tissues Act, 1994 as cited by the petitioners.

The case also harped on the issue of “informed consent” as the court noted that the disabled boy was not in a position to give informed consent regarding something as complex as kidney transplant.

“He is not an individual who is in a position to voluntarily authorize removal of his organ or tissues,” the bench ruled.

The court also noted that the restriction on removal and transplantation of human organs as mentioned in Section 9 of the 1994 Act, was an ‘absolute prohibition’ in cases related to mentally-challenged persons and hence in no way can the boy donate his kidney to his ailing brother.