Hundreds of organ transplant patients are dying in the queue as lack of capacity and proper laws continue to send many to the grave.
For instance, the kidney transplant waiting list at Kenyatta National Hospital now stretches to 2,019, despite the hospital performing the procedure on a weekly basis.
While a new law governing organ donations was enacted on July 2017, failure by the Cabinet secretary for Health to gazette rules for the approval of organ transplant facilities has left public hospitals stretched – as no new facilities can be “duly authorized” without the rules in place.
The dire situation is then compounded by the prohibitive cost of medical care, difficulty in getting suitable donors, and lack of capacity in the available medical institutions.
To doctors, the law will help patients who would have otherwise died due to lack of donors.
But while health technocrats can take time with bureaucratic approvals, the same cannot be said of patients on the waiting list.
“(The law) provides hope for patients and doctors, (and) has spelt different sources and individuals/ circumstances in which organ donation can be made and ensures availability of tissues for learning,” Dr Veronica Manduku, the director of the Centre for Clinical Research Laboratories at the Kenya Medical Research Institute (KEMRI), says.
One month ago, the country woke up to an unconventional request from a veteran Kiswahili news anchor who had put up one of his kidneys for sale.
While Swaleh Mdoe confirmed that he was willing to sell his kidney for Sh2.5 million to help him pay off some of his financial debts, his offer opened debate on whether it was legal to sell an organ on the open market.
“Yes, I am selling one of my kidneys for Sh2.5 million and already a lot of people have called me to inquire more about it,” he said during an interview.
The law stipulates that anyone “who charges a fee for a human organ commits an offence (and) is liable on conviction to a fine not exceeding Sh10 million or to imprisonment for a period not exceeding 10years or to both a fine and imprisonment”.
Despite the lack of donors, doctors are wary of such offers – driven by laws of demand and supply – saying that commercialising organs can open doors to an illegal organs trade as has happened in India, where Kenyans have been turning for such medical care.
In India, buying or selling an organ is in contravention of the Transplantation of Human Organs and Tissues Act, a central legislation that governs organ transplants in the country.
“In Kenya we know that albinos have had their lives threatened owing to the belief that their organs provide HIV/ Aids healing,” Dr Manduku says.
“For organs, if there is a cost component to it, there would definitely be enhanced organ trafficking. A case in point is India, where this is rampant driven by high poverty rates."
Dr Manduku also fears that there can be premature declaration of deaths in hospitals to allow for harvesting of organs.
“There would also be inadequate care of road traffic accident victims at the accident and emergency centres as these are sometimes the clients who create a good pool for harvesting,” she says.
For decades, the country lacked a law to govern organ harvesting, leading to a pile-up of cases at public and private hospitals.
However, in July last year, President Uhuru Kenyatta signed the Health Act that made it easier for Kenyans to donate their organs for transplant and research.
This means that people seeking to donate their body or organs upon death are now free to do so.
The 2017 Health Act, which builds on the Human Tissue Act of 1966 (reviewed in 2012), also allows people who are competent to make a will or oral statement before witnesses to donate their body or specific organs to be used after their death either to save another person’s life or in medical institutions for learning.
Donations, doctors say, should be altruistic, where donors selflessly volunteer their organs out of concern for the well-being of others.
Often, doctors insist on donors being immediate family members because the likelihood of finding a match is higher.
“The further you move away from the bloodline, the less likely you are to find a donor,” Dr John Ngigi, the head of Kenyatta National Hospital’s Renal Unit in Nairobi, says.
“But some patients are unable to get organs from their relatives due to medical reasons, such as a history of diabetes or non-matching blood groups.”
However, an exception is made in special circumstances, such as for married couples, as long as they prove that they are legally married, or when tissues from close relatives do not match those of recipients.
Before one is certified as a suitable donor, rigorous background checks, sometimes running up to three months, must be conducted.
But even though the background checks help to prevent illegal practices, including organ harvesting and trade, some potential donors give up along the way because the process is tedious.
In India, where, like Kenya, there are few cadavers available for the harvesting of organs, police recently busted a racket where a kidney patient on dialysis was allegedly buying a kidney for transplant.
To avoid a situation where organs can be harvested illegally in hospitals, the law only gives the Cabinet secretary the right to donate an individual’s organs in the event that the relatives of a deceased person cannot be traced and no will is left behind.
The donation may be made for training of students in medical learning institutions, for research or advancement of health sciences, or for healing purposes, including the use of tissue in any living person.
In the absence of a will, however, the new law states that “the spouse or spouses, elder child, parent, guardian, eldest brother or sister of that person, in the specific order mentioned, may, after that person’s death, donate the body or any specific tissue of that person to an institution or a person contemplated in this subsection”.
The law further provides that any transplant of tissues must be done in a duly authorised health facility and after written approval from a medical practitioner in charge of clinical services in that facility.
The doctor authorising the transplant is not allowed to be the lead participant in the transplant.
But even with the law, cultural and religious challenges are now standing between death and survival.
“Personally, I have had a close relative who needed an organ transplant and it took a whole year for the donor to accept it because it had to involve the entire clan to approve it and this was very frustrating.
“The new law simplifies this and if used appropriately, will ensure availability of tissues for learning,” cardiologist Fredrick Kirui, who reckons that the society should be sensitised on organ donations and be given the option for signing wills for organ donation to help those who need it, explains.
Whereas Dr Kirui says he does not directly handle organ transplantation in his practice, his biggest headache is when he has to help get an organ donor and also the cost of transplantation – meaning, the procedure and medication after the transplant.
“I have treated patients who have had transplants and their main challenge is the medical cost of immuno-suppressive therapy after transplantation.
"Most patients are forced to travel from far areas to Nairobi to access care, which is equally not affordable,” he says.
For health human rights lawyer Allan Maleche - who works at the Kenya Legal and Ethical Issues Network on HIV/AIDS (KELIN) - the question on whether we need our organs in death speaks to three things: the right to dignity, posthumous personality rights, and freedom of religion.