Uwakwe Abugu is a law professor at the University of Abuja’s Faculty of Law, specialising in medical law and ethics. Abugu is the current Vice-Chancellor of Ave Maria University in Piyanko, Nasarawa State, as well as the President of the Medical Law Professional Association of Nigeria. The MELPAN President discusses the laws governing organ donation in Nigeria and other countries in this interview with LARA ADEJORO
What exactly do we refer to as an organ transplant?
An organ transplant is the removal of a person’s organ with the purpose of transplanting it to a living person whose organ is either diseased or has become bad or does not exist. The procedure is a modern development in medical and healthcare delivery systems growing everywhere.
In developed countries, it has become a way to save humanity from the scourge of incurable diseases. An organ transplant itself is a very good and salutary intervention by a human being in the life of another. An author described an organ transplant as a way to confirm and share humanity with your neighbour.
As of 2020, there was a law passed by the United Kingdom government which provides that any living human being is deemed to have consented to transplanting or harvesting his organs when he or she dies for the purpose of donation to save somebody’s life. When you are living, you are presumed to have consented that your organ, upon death, should be donated for the service of humanity. So, you are given the option to opt in or out of the law. Opting in is when you do not do anything about it, but if you want to opt out, you need to register your name in the National Health Service Register on organ donation. If you do not register, you may inform your relative that when you die, your organ should not be donated.
What is the implication of becoming an organ donor and what are the precautions one needs to take before and after donating an organ?
The implication of organ donation should be left to the doctors. But what we know is that an organ that is capable of being donated is one that if you donate it, it will not become harmful to your system. For instance, before you donate your kidney, you must be certified to be capable of donating and ensure that your two kidneys are actively functional, and science has proven that a human being can live healthily up to term with one kidney.
Is there an age limit for donating an organ?
Not really, but the law has provided that if you are below 18 years, you might donate an organ, but you might not have the medical and legal capacity to consent, so your consent will now become the consent of your parents or your guardian. Also, the age limit for the donation of an organ depends on the scientific investigation of the proposed donor.
The medical personnel may decide that you are too young to donate, so in that case, you might not be capable of donating. However, once the medical personnel confirms that your organ is fully developed and can be used for the replacement of another person’s organ, you can donate it.
Meaning that if you are more than 18 years old, you might give your consent to donate, but if you are less than 18, you are presumed by law to be incapable of consenting. Even with someone that is under 18, if he does not want to donate, the parents cannot force him to donate, but if he wants to donate, his parental consent becomes a requirement.
Sequel to that, there is what we call Gillick Competence, which is when somebody is under 18 but more than 16 years old and has the mental capacity to understand the consequences of his action. In that case, even if the parents withhold consent and the court finds out that you understand the consequences of what you are going into, then the court can permit you to consent, overriding the withholding of consent by the parents.
Is there a regulatory body on organ harvesting and donation in Nigeria?
Yes, there is a regulatory law that governs organ harvesting and donation in Nigeria. It is in the National Health Act of 2014. The Act, between sections 48 and 57, has made several provisions governing organ transplants or tissue transplants as the Act uses them. It prohibits the provision of organ transplant services by any hospital, except a duly authorised hospital, and with the written consent of the medical doctor in charge of medical services of the hospital. If a hospital is authorised to provide organ transplants, the medical officer in charge of clinical services would have given written consent for those services to be provided by the hospital.
The Act also prohibits the commercialisation or commoditisation of human organs to the extent that if a person is involved in the sale, procurement, or distribution of human organs, he may run afoul of the Act, and the Act has made penal provisions for terms of imprisonment or fine. If you commercialise an organ, you are liable to N1m fine or not less than two years’ imprisonment.
Hence, the essence of the non-commercialisation of organs is that a donor is prohibited by law from donating an organ as a commercial transaction. But if you have incurred some expenses in the process of donating, you might be reimbursed for those expenses. There are other provisions of the Nigerian law in the National Health Act relating to organ donation. The Act provides that there shall be no removal of organs or tissue without the informed consent of the organ donor.
Consent is at the heart of organ donation and at the heart of all medical procedures to the extent that under no circumstance shall medical personnel touch or treat a patient without his consent, no matter how beneficial or harmless the procedure may be or how foolish the patient’s decision may be.
When you apply this to organ donation, you will find out that the consent must be informed as you must have told the organ donor the nature and purpose of the procedure, the risk involved, and other consequences. The consent must not be under duress or promise of an advantage. Any act of organ harvesting or donation without consent will amount to assault and battery.
What are the differences between the laws in Nigeria and other countries guiding organ harvesting and transplantation?
Under Nigerian law, there is no presumption of deemed consent to organ donation, unlike the provision in UK law that a living person is presumed to have consented to the donation of his organs upon his death unless he opts out.
Nigerian law has made copious provisions for organ donation. In the NHA, sections 48 to 57, a lot of provisions are embedded and have covered most of the provisions in the English Human Tissue Act of 2004, which is the legal framework for organ transplants in the UK. The only difference now is that in England in 2015, they enacted an organ donation Act that makes provision that once you are a living person, you are presumed to have consented that when you die, you are donating your relevant organ unless you opt out of that general provision of the law.
Under the English HTA of 2004, the only allowable organ donors and recipients are those who are genetically related. If you are not genetically related, then there is an exception where you must prove that it is not for commercial purposes and you must have consented voluntarily to the donation.
What are the organs in the body of a healthy person that can be donated?
The first organ donation developed by scientists was kidney donation, which was in the ‘50s, but in the 1960s, further advancement came to the extent that the lungs and the heart were donated. Now, we can even donate part of the liver, a small portion of the bowel, pancreas, etc. If you have donated your kidney, the second kidney will be working normally, and it is possible to donate your lung if the other lung is working normally.
Does Nigeria have organ banks?
As of now, there are no organ banks in Nigeria. What we have are blood banks. Organ banks in Nigeria are isolated cases in different hospitals, but there is no general legislation creating a legal or regulatory framework for organ banks.
Some advanced hospitals have organ banking facilities that they use as the need arises, but that does not mean that Nigeria has a system of organ banking. Any organ bank you see in Nigeria is an individual arrangement by the hospitals.
Is it okay to compensate an organ donor in cash or kind, such as awarding scholarships, for instance?
As I said earlier, organ donation must be altruistic and actuated by the need to assist humanity and not for commercial purposes or as a result of some inducement. Meanwhile, if an organ donor incurs reasonable expenses in donating, he is entitled to be refunded.
Is there a penalty for someone who compensates a donor?
The law is stringent that a fine of N1 million or imprisonment for not less than two years is prescribed, but it does not mean that it must be two years. The court has the discretion to give you life imprisonment or give you twenty years’ imprisonment, provided the punishment is not less than two years.
What role, if any, do Nigerian hospitals play in procuring organs for needy members of the public?
Organ donation is still at an infancy stage in Nigeria because of our culture, religion, and other problems and challenges. If the Nigerian hospitals are aware of the provisions of the NHA, they need not enter into organ transplant services without the authorisation of the National Tertiary Institution Standard Committee for which the provision is made in the NHA. It is the committee that can authorise a hospital to engage in organ transplant services.
