Following the ongoing trial of Senator Ike Ekweremadu and wife in the United Kingdom on the allegation that the couple planned to carry out illegal organ harvesting, FUNMILAYO AREMU writes on organ donation/ transplant and the processes and/or requirements that make the crucial medical situation legal or illegal.
People hope and pray for longevity and healthy lives; they take health insurance policies to ensure that all go well for their health, but sometimes things do not go as planned. Physical health could fail for so many reasons regardless of social status, ethnicity, race, or religion. In addition, some body organs may be so affected that they require in some cases replacement.
Such was the situation with the daughter of Senator Ike Ekweremadu, Nigeria’s former deputy Senate President, who is in dire need of kidney replacement. But the entire process of getting a donor and having a transplant procedure performed in the United Kingdom (UK) has hit a brick wall over allegation of a not too tidy process bordering on illegality, according to court proceedings.
The donor, David Ukpo, had raised the alarm alleging that he was a minor and had no prior awareness of why he was brought to the UK by Ekweremadu, which resulted in the arrest of the latter and his wife. Though it has now been established by the court that the donor lied about his claim of being a minor, Nigerians are not short of comments on the issue, voicing their opinions, depending on their perception of and level of awareness of the subject matter. The reality, however, is that not all who made comments on the issue, including the legal and medical details of the procedure involving both parties, fully understand the details of the subject matter.
What UN, WHO say on organ donation and transplant
According to the United Nations Office on Drugs and Crime, “Trafficking in persons according to Article 3(a) of the Trafficking in person protocol, shall mean the recruitment, transportation, transfer, harbouring or receipt of persons using threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or a position of vulnerability or giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others to other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”
On organ donation, there are acceptable global standards and procedures prescribed by the World Health Organization (WHO) which must conform with international standards governing donation and transplantation. The WHO) issued Guiding Principles on Human Cell, Tissue and Organ Transplantation and provided key international standards, such as, “in the case of living donor donation, the living donor should be in general, genetically, legally or emotionally related to their recipients unless such related persons and recipients do not match well immunologically.
“Living donors have to give informed and voluntary consent. Living donors should act willingly and free of any undue influence or coercion and need to be informed of the probable risks, benefits and consequences of the donation and a complete and understandable fashion.
“The need to ensure professional care of donors and well-organised follow-up, strictly apply and monitor criteria and ethical norms, not financial considerations. Organs shall not be removed from minor and legally incompetent donors, except when such is allowed under national laws for narrowly defined cases; organs should be donated freely, without any monetary payment or other rewards of monetary value except for reimbursement of reasonable and verifiable expenses incurred by the donor, such as loss of income.
“Purchasing or offering to purchase organs for transplantation or their sale by living persons should be banned. Physicians and other health professionals should not engage in transplantation procedures and health insurers and other payers should not cover such procedures if the organ has been obtained through exploitation or coercion of or payment to the donor.”
The WHO guiding principles on human cells, tissue and organ transplantation require that “cells, tissues and organs should be donated freely, without any monetary payment or other rewards of monetary value. Purchasing or offering to purchase cells, tissues or organs for transplantation or their sale by living persons or by the next of kin for deceased persons should be banned.
“This principle permits compensation for the costs of making donations including medical expenses and lost earnings for live donors, lest they operate as a disincentive to donation. The need to cover legitimate costs of procurement and of ensuring the safety, quality and efficacy of human cell and tissue products and organs for transplantation is also accepted as long as the human body and its part are not a source of financial gain.”
Organ donation: The pros and cons
But which of the body organs can be donated and what are the procedures? In view of the foregoing, Sunday Tribune spoke with professionals in the medical field to shed more light on the subject matter.
Consultant Urologist at the Federal Medical Centre in Abuja, Dr Muftau Bioku, explained the fundamentals of organ transplant and donation. He revealed that the kidney is the most usually donated intra-abdominal organ, adding that donation of the liver, pancreas, colon, stomach, and testes can also be made by living or deceased donors. In the chest region, the heart and lungs can be donated by deceased donors while the lungs can be donated by living donors.
According to him: “organ transplantation, which is technically a surgical procedure in which a failed or damaged organ in the human body is replaced with a functioning one from a compatible donor, is a life-saving operation.
“Organ donation and transplantation are guided strictly by the National Health Act of 2014 (signed by ex-President Goodluck Jonathan). ‘Section 48 (2), states that a person shall not remove tissue which is not replaceable by natural processes from a person younger than 18 years.’ Of course, the procedure is only performed in government duly authorised hospitals.
“In Nigeria, today, there are many private hospitals, especially in Abuja, Lagos, Port Harcourt and a few teaching hospitals where kidney transplants are performed. We see more living donors, unlike in the developed world where cadaveric or deceased donors are common, because of our cultural or religious background. Usually, we prefer living, close relatives as donors but in most cases, this is not available.”
Dr Bioku revealed that a few things must be done and put in place before organ donation may take place. He said: “The donors are properly evaluated, counselled and informed consent obtained before organ donation is done. In some cases, there may be a need to optimise the patient for kidney donation, which is the most commonly transplanted organ in Nigeria, key to evaluation is that the two kidneys must be functional, such that after one is donated, the other kidney shall ensure the continued good health of the donor.
“For the recipient, (the sick, who receives the donated organ) the evaluation and preparation are even more thorough. He or she must meet the indication for transplant, i. e, the organ must have failed. We need to rule out other diseases and co-morbidities. Immunologic tests, such as serology, tissue typing and cross-matching as well as blood group, are done.
“Informed consent, explaining the nature of the disease and the need for a transplant, the possible outcome and the complications and the need for compliance to immunosuppressive therapy is mandatory. Having satisfied all these, the patient is then optimised for the transplant operation,” he explained.
Challenges and possible solutions
With many Nigerians suffering from one or more organ failures, the most pressing issue, according to Dr.Bioku, is a shortage of organs.
“The single most important challenge in Nigeria and globally is organ shortage. There is a wide gap between demand and supply, leading to more patients awaiting organ transplantation than there are donors. Closely related to this are ethical issues; socio-cultural and religious beliefs which are fuelling organ commercialisation and trafficking.
“Organ transplantation is a complex surgical procedure. Adequate preparation and evaluation are very important for excellent outcomes for both donors and recipients. Although, a few hospitals in Nigeria carry out organ transplants currently, most of the centres are privately-owned centres. They are faced with some challenges, high cost of transplantation and poor facilities and equipment in most of our public hospitals,” he stated.
Concerning potential solutions to the issues of organ donation and transplantation, he suggested that greater awareness be raised and that the government boost the funds allotted to public institutions.
“As organ shortage continues to plague transplantation in Nigeria and the world over, there is a need to intensify public awareness. Average Nigerians should be assured and reassured that the surgical procedure is safe.
“To further reduce the waiting time of recipients, there is a need to borrow the ‘opt-out’ system of the United Kingdom whereby all citizens, upon their demise, are legally organ donors except if they opt out by declination. Government should also increase budgetary allocations to its public hospitals where the cost of transplantation will be affordable compared to privately owned hospitals,” he recommended.
He also stated that pledged organ donation is a guaranteed approach to solve and reduce the problem of organ shortage in Nigeria.
In his words, “It will go a long way in solving or reducing the problem of organ shortage. But this has to be legalised as in the United Kingdom. The organ donation Act of England makes provision that once you, a living person, are presumed to have consented that when you die, you are donating your organs unless you opt out of that provision of the law.
“However, there will be a need for strong advocacy and public enlightenment for this type of bill to pass in our National Assembly bearing in mind our socio-cultural and religious beliefs.”
Many people are known to be terrified of any medical procedure. Patients also have a great likelihood of survival. According to Dr Bioku, “For organ donors, it is important that the medical team ensures their safety. Before a donor donates his or her kidney, for example, experts must make sure the two kidneys are actively functional. Again, everything must be done to avoid intraoperative or postoperative complications.”
The legal dimension
A medical law consultant, founder of Medical Law Hub, and member of the World Association for Medical Law (WAML) and Medical Law Professional Association of Nigeria (MELPAN), Adeoye Damilare, spoke with Sunday Tribune on the legalities of organ donation and transplant, especially in Nigeria.
He explained that “the National Health Act of 2014 governs organ donation and transplant in Nigeria. The National Health Act (NHA), as contained in Part VI, from Section 48 to Section 57, has created various provisions governing organ transplants or tissue transplants as the NHA uses the terms in Nigeria.”
Speaking further, he noted that although there are no formal guidelines provided for organ donation and transplants in Nigeria, the Act places heavy reliance on the need for written permission from appropriate authorities, and strictly restricts the power to conduct such procedures to registered medical practitioners in a fully-authorised hospital, and most importantly, with the donor’s informed consent.
“On informed consent, regardless of how helpful or risk-free the operation may be, or how stupid the patient’s decision may be, medical staff must always get the patient’s consent before touching or treating him. This is applicable to all medical procedures, including organ donation. When applied to organ donation, you will discover that informed consent is required since you must have informed the organ donor about the nature and purpose of the procedure, the risks involved, and other implications. The consent must not be obtained under pressure or with the promise of a benefit. Any unconsented organ harvesting or donation will be considered illegal,” he explained.
When asked about what constitutes a crime in organ donation and transplant, Damilare submitted that “the NHA forbids the provision of organ transplant services by any hospital other than a fully authorised hospital by the National Tertiary Institution Standard Committee and with the written authorisation of the hospital’s medical practitioner in charge of medical services. If a hospital is authorised to do organ transplants, the medical officer in charge of clinical services is expected to have issued written permission for the hospital to provide such services.
“Therefore, it is illegal for anybody to participate in the organ donation and transplantation procedure in Nigeria without complying with all of these conditions; they risk being fined N100,000 or spending up to two years in jail, or both.
“The NHA also forbids the commercialisation or commodisation of human organs, and it has set punitive provisions for terms of imprisonment or fines if a person is found to be involved in the sale, acquisition, or distribution of human organs. This means that if you sell an organ, you might face a N1,000,000 fine or up to two years in prison.
“Any form of payment for organ donation is illegal and prohibited under the law. The only exception where a donor can receive money is where it is to compensate the donor for the reasonable expenses he incurred in the process. The fundamental idea behind the non-commercialisation of organs is that a donor is not allowed by law to donate an organ in exchange for money. It must be fully altruistic and must not be commercialised in any way.”
He also noted that “the application of these regulations, like other laws in Nigeria, remains a major concern, as greater medicolegal awareness is still required for everyone in Nigeria- educating the Nigerian public on the legal stance on medical matters should be a priority. The lack of a suitable guideline describing the minimal standard and method for organ donation and transplant in Nigeria, which may fill the gap and serve as a guide for medical practitioners in Nigeria, is central to this.
“There is also a need to engage in public debate to enhance existing rules governing organ donation and transplantation, among other things. For example, under Section 48 (1) (b) of the NHA, a medical practitioner has the authority to waive a live donor’s consent “for medical investigations and in emergency cases.
“This leaves room for infringement because it takes a living donor’s fundamental right to consent or withdraw consent at any stage before transplantation and places decision-making power in the hands of the medical practitioner. This is a major concern for many Nigerian medical law experts, and it is worth revisiting.
“This is one of the reasons Medical Law Hub was founded in 2020; Nigerians need to be made more aware of their medicolegal rights and obligations in medical practice, as well as how these are governed by the country’s current medical laws and medical ethics.”
From the foregoing, organ donation is not as simple as it seems. Though it is a procedure that could be done in Nigeria putting a donor through any form of long journey, for those who have the wherewithal to patronise the best hospitals around the world, being fully conscious of what the legal and medical requirements are could save them from legal conundrum as is the case with Ike Ekweremadu.
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