Problematic health Bill could spur organ trafficking

Last week, British Airways had to cancel all flights from Heathrow and Gatwick airports as all its IT systems crashed.

All investigations are pointing to human error. The Times reported that a contractor accidentally disconnected the power supply in the company’s main data centre.

The outage affected 75,000 passengers. The Guardian says British Airways will be hard hit by a compensation bill of more that $128 million for the chaos caused by such a silly mistake.

All accusing fingers are pointing to Alex Cruz, BA’s chairman and CEO. Perhaps he is not good enough, people say; possibly, there is a pinch of British tribalism and a damaged ethnic pride caused by having a Spaniard as the CEO of this legendary British icon.

Such silly incidents can cause death and destruction, and for some people, death is a serious business. Not just for the deceased’s loved ones but for the valuables a healthy death may leave behind, such as valuable organs and tissue.

The idea of “healthy death” will soon gather momentum in our absurd unethical world. We say “money talks” and that everything and everyone has a price. This is evident for organ predators, even though we may not like it.

In some countries, a healthy death is one of the most important targets for modern hospitals, because they can harvest organs profitably for transplant and sell them to willing, desperate buyers.

Organ transplant is one of the most amazing developments of modern medicine. It is a lifesaver, necessary and good. The ethical problem arises in the way those organs are procured.

The increasing need for organ transplant is a worldwide concern, triggering government policies that encourage organ donation and transplant.

The need for organ transplant has also fuelled exploitative trade in organs. In China, for example, there have been great concerns about a massive, lucrative organ trade, where most organs harvested are from executed prisoners.

The Chinese government says it has put in place measures to curb abuse, but the number of organs “exported” from China still points at a massive ethical and human rights crisis.

In India, too, the poor and the abandoned sick lose organs to gangs of illegal traders. From the mid-1990s, there has been a terrible increase in a practice called “transplant tourism”, mainly in China and India, where desperate organ recipients pay cash to circumvent waiting lists and government regulations.

INFORMED CONSENT

These abuses have triggered the growing concern for a regulatory framework that seeks to facilitate organ donation and harvesting, but at the same time eradicates organ trafficking.

The discourse on regulation of organ trafficking can be traced back to the WHO World Health Assembly Resolution in 1987, prohibiting trafficking for, among other reasons, exploitative purposes that include organ removal.

This has been specified in detail in the UN Protocol to Prevent, Suppress and Punish Trafficking of Persons, and the UNODC Assessment Toolkit on Trafficking of Persons for the Purpose of Organ Removal.

Notably, in these agreements organ trafficking is a crime in the context of another crime that is trafficking of persons.

This limitation, coupled with the harmful effects of organ trafficking, has elicited interest in the creation of an international convention to specifically deal with organ trafficking.

In 2010, the World Health Organisation, in its WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation, provided a guideline on the extent and the context in which organ donation and transplantation is legal and prohibits trade in body organs.

Guidelines provide that organ cells and tissues can be removed from bodies of deceased persons for transplant as long as consent is obtained in accordance with the law.

Adult living donors can also donate organs in accordance with domestic law and such donation must be based on voluntary and informed consent.

Guiding principle 5 prohibits the sale or purchase of cells tissues or body organs. The only payment allowed is reimbursements for the “costs of recovering, processing, preserving and supplying human cells, tissues or organs for transplantation.”

Further the guidelines prohibit physicians from engaging in transplantation where the organs have been obtained by exploitation, payment, coercion or other illegal means. These provisions should guide domestic legislation, but abuses are still rampant and worrying.

KENYA'S LEGAL FRAMEWORK

Cynthia Amutete, a young lawyer and up-and-coming advocate, argues that Kenya’s legal framework on organ donation and harvesting is unclear, hardly comprehensive.

In 1967, Kenya enacted the Human Tissues Act of 1966 which regulated the use of body parts of deceased persons for therapeutic, medical, education, research and other incidental uses.

Such removal had to be authorised by the deceased while still alive or by the surviving spouse or family, and only a person authorised to practice medicine could carry out such removal.

This Act allows organ harvesting for transplantation (therapeutic purposes) as long as it is consented to by the donor. Other than the Human Tissues Act, Kenya has not had comprehensive regulation for organ donation.

However, organ donation in Kenya has been largely permitted as long as the donation is by a blood relative or spouse.

The donation should be voluntary without expectation of payment in cash or in kind.

Kenya is increasingly facing organ transplant and donation challenges due to the gaping disparity between demand and supply. There is also a disparity between presumed and informed consent.

Presumed consent is where it is automatic that upon death the tissues and organs will be donated for transplantation, unless the deceased had expressed wishes not be a donor.

This happens in Hungary, Luxembourg, Belgium, Austria and Croatia. Presumed consent has given way to many abuses, including euthanasia, or willful killing, in order to harvest as many organs as possible.

EXPLOITATIVE REMOVAL

The 2016 Health Bill was drafted in Kenya and presented to the National Assembly in March 2016. This Bill is quite defective and has many drafting loopholes.

Section 80 of the Bill provides that removal of tissues or organs for transplantation shall be done in a duly authorised health facility and with the consent (in writing) of a medical practitioner “or” the donor. This is highly problematic.

This Bill would easily open the floodgates for harvesting and exploitative removal and trading of organs.

Using the word “or” insinuates that the donor can fail to consent to the organ removal, and this consent can instead be given by the medical practitioner or even the hospital head, apart from family and the Cabinet minister if the body is unclaimed.

The Bill does not prohibit the sale or purchase of tissues, blood and organs. The Bill only prohibits charging a fee for a human organ, which is a rather limited way of curbing trade in organ trafficking. It does not prohibit purchase and trade where payment is in forms other than a fee.

Ethical considerations in delicate fields such as organ transplant require the grafting of good laws. A small oversight would give way to painful blunders. In a poor country, such as ours, cartels could easily push their way to harvesting anything from everyone. It is already happening elsewhere.

These mercenaries may cash in from the “healthy death” of the marginalised, poor, sick or simply disadvantaged.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi