The Bombay High Court (HC) refused a plea seeking permission to an ‘intellectually disabled’ person to donate his kidney to his brother. The Bombay HC held that as per the provision of Section 2(f) of the Act, the donor must be a person who is not less than eighteen years of age and who voluntarily authorizes 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.

In another major decision, the Kerala state legislature granted permission to prisoners in the state to donate their organs to immediate family members. To do so, the prisoners will have to first seek permission from the medical board and also from the particular court that prosecuted them. This decision to allow organ donation was inspired by a Kannur prison inmate’s appeal to donate his kidney to a family member.

Speaking about this, Padma Shri Awardee Dr K K Aggarwal, President Heart Care Foundation of India (HCFI) and Immediate Past National President Indian Medical Association (IMA), said, “There are five aspects to an informed consent: competence, which is the legal term for the capacity to make a rational choice; amount and accuracy of information, patient understanding, voluntariness, which is a personal choice; and authorization, which refers to active agreement to the course of action. In the case of a mentally challenged person, none of these five tenets of an informed consent are present. 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. In the second case, while informed consent is present, the fact that donating organs to someone outside of the family entails formalities such as getting the organ matched, etc. Hence, such people can donate only to relatives and none outside.”

Organ donation is still an unsolved problem in our country. However, there has been a recent amendment to the Organ Transplant Act 2014, according to which it is now compulsory for every doctor to follow mandatory required request for organ donation. This means that once a person is declared dead, the doctor on duty must call the relations and give them an option: if the patient is declared dead, give them an option for corneal donation and if the person is declared brain dead, then give them the option of giving all body organs for donation.

Adding further, Dr Aggarwal, who is also Vice President, Confederation of Medical Associations of Asia and Oceania, said, “Required consent is a good thing. However, the law in most of the other countries makes it mandatory to donate organs and this should be the case in India also. We need to also communicate to people that they can live even after death through organ donation. We are still waiting for any such popular person who can become a brand ambassador for this cause, because he/she chose to donate their organs -- cases which can be cited as examples of people living through donation of their organs to someone. These people should be respected and honored.”

Some other facts about organ donation are that age is not a barrier for donating. Even people above the age of 80 have become organ and tissue donors. One does not have to be in perfect health to become a donor. Even those who smoke, drink or don’t have a healthy diet can donate. Organ and tissue donation do not disfigure the body in any way.

In case of an accident, the doctor will always try to save the life of the victim first. Organ donation is considered as an option only when the person dies due to certain circumstances.