What are the rights of a mentally-challenged person? Does the family have a right to make decisions on behalf of such a person when it related to a complex issue such as  living kidney donation? A man has petitioned the Chhattisgarh High Court asking it to allow his younger son to donate a kidney to his elder brother, the reason being the patient’s younger brother, Ghanshyam, is mentally challenged, and therefore unable to make an informed decision on his own.

Thirty –year old kaushal has been on dialysis for the last five months, ever since wrong medication led to the failure of both his kidneys. It is mandatory for a person who donates organs to give consent and doctors say that while Ghanshyam is physically fit t donate a kidney, he is not in a position to give consent, which is crucial, especially for living organ donation.  The transplantation of Human Organs Act is silent on the issue of persons with mental retardation donating organs, but it does say that organ donation cannot take place without the informed consent of the donor. The question here is how is consent to be obtained from a mentally challenged person. Kaushal and Ghanshyam’s father, redheyshyam, feels that he should be able to give consent on behalf of his mentally challenged son and has filed a petition in the High Court asking it to interment. The High Court in turn has issued notices to the state government asking for a response.