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Petition seeking the permission by a mentally challenged person to donate his kidney to his brother has been rejected by the Bombay High Court.
The parents and two sons filed the petition before the Bombay High Court under Section 2(f) of the Transplantation of Human organs and Tissues Act, 1994 contending that the mentally challenged son to be a donor for his brother. It was submitted by them that the in situation of moderate mental retardation, the court can decide whether such person is a position of taking his own informed decision.
The petitioners invoked the best interest test and contended before the court that it is in the best interest of the donee brother who is suffering from a kidney disease and the mentally challenged brother hence, the court should grant the permission for the kidney transfer. It was submitted before the court that it will be good for the mentally challenged brother if he donates the kidney to his brother as the mentally challenged brother will be looked after properly by his brother.
However, the court said that the principles based upon “best interest test” cannot be made applicable in the Transplantation of Human Organs and Tissues Act, 1994.
Justice R M Borde and Justice Vibha Kankanwadi after interviewing the mentally challenged brother said that he is not in a position to understand the questions put forth to him and is not able to take his own decisions,
The bench further observed that the restriction under sub-section 1C and section 9 of the act for removal and transplantation of human organs or tissues with respect to mentally challenged person is an absolute prohibition. The Statutory provision shall have to be construed mandatory.