In the matter titled as “Ganpatrao & Others versus State of Maharashtra & Others, Writ Petition No. 13918 of 2017, the Hon’ble High Court of Bombay, Bench at Aurangabad dealt with the issue whether a person who is mentally challenged and represented by natural guardians father and mother can be a donor for removal of his organs or tissues within the meaning of Section 2(f) of the Transplantation of Human Organs and Tissues Act, 1994 and whether he can be permitted to donate human organ for transplantation in favour of his real brother inspite of bar provided under Section 9(1-C) of the Transplantation of Human Organs and Tissues Act, 1994.

The provisions of Section 2(f) of the Transplantation of Human Organs and Tissues Act, 1994 are as follows:

“Section 2(f) of the Act defines donor as any person, not less than eighteen years of age, who voluntarily authorises the removal of any of his [human organs or tissues or both] for therapeutic purposes under subsection (1) or subsection (2) of section 3.”

The provisions of Section 9(1C) of the Transplantation of Human Organs and Tissues Act, 1994 are reproduced hereunder:

“9. Restrictions on removal and transplantation of [human organs or tissues or both]

(1C) No human organs or tissues or both shall be removed from the body of a mentally challenged person before his death for the purpose of transplantation.

Explanation For the purpose of this subsection,

(i)                  the expression "mentally challenged person" includes a person with mental illness or mental retardation, as the case may be;

(ii)                 the expression "mental illness" includes dementia, schizophrenia and such other mental condition that makes a person intellectually disabled;

(iii)               the expression "mental retardation" shall have the same meaning as assigned to it in clause(r) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)]

In the present case, the Hon’ble High Court of Bombay held that as per the provision of Section 2(f) of the Act, the donor has to be a person who is not less than eighteen years of age and who voluntarily authorises removal of his organ or tissues. Further, the provisions of Section 9(1C) of the Act puts bar on removal of human organ or tissues or both from body of a mentally challenged person. Thus, the person who is suffering from mental retardation and who is not capable of making a decision for himself, is a person who not in a position to voluntarily authorise removal of his organ or tissues as per Section 2(f) of the Act and also in view of the bar of Section 9(1C) of the Act, the organ or tissues of such person cannot be removed and donated.

The relevant paragraphs of the judgment passed by the Hon’ble High Court of Bombay is reproduced hereunder:

“15. As has been recorded above, the principles in Common Law jurisdiction based upon "best interest test" cannot be made applicable in view of specific provisions in Transplantation of Human Organs and Tissues Act, 1994. Section 2(f) of the Act defines donor as the person not less than eighteen years of age, who voluntarily authorises removal of his organ or tissues. In the instant matter, petitioner no. 3 is not an individual who is in a position to voluntarily authorise removal of his organ or tissues. Apart from this, section 9(1C) puts bar on removal of human organ or tissues or both from body of a mentally challenged person. In the instant matter, petitioner no.3 is adjudged as suffering from mental retardation and he is reported to be a person not capable of making decision for himself. We, with a view to find out whether petitioner no.3 has a minimum level of understanding, interviewed him by calling him in chamber in presence of the counsel of both the sides. We have noticed that petitioner no. 3 even was not in a position to understand the questions put to him and is incapable of understanding the consequences of his act. His decision making power is severely impaired and we do not doubt the opinion of the Consultant Psychiatrist.

16. The restriction on removal and transplantation of human organs or tissues or both contained in subsection (1C) 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.”

Therefore, the person who is mentally challenged and represented by natural guardians’ father and mother cannot be a donor for removal of his organs or tissues within the meaning of Section 2(f) of the Transplantation of Human Organs and Tissues Act, 1994.

Also, he cannot be permitted to donate human organ for transplantation in favour of his real brother in view of the bar provided under Section 9(1-C) of the Transplantation of Human Organs and Tissues Act, 1994.