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November 21, 2018

The law and the thorny issue of organ, tissue donation

Article 43 of the constitution guarantees all of us to the right to health. Whereas a few of us have no health problems and are living happily, many Kenyans are dealing with a host of known and unknown health challenges. Many are dying in hospitals in need of human tissue and body organs which are so scarce in our hospitals. The most unfortunate thing is that many Kenyans die and are buried with healthy body tissue and organs which would have changed a living person's life.

There is a dearth and glaring need for more research on the human anatomy if we are to live longer. No doubt the human body organs and tissue contain a cache of the much needed information that the scientists and doctors can tap into so as to save us from premature death and advance our health standards. This will in turn provide assurance that the family unit will be promoted. A healthy nation means greater manpower and economic growth and better standards of living for all of us.

There is an organ waiting list in almost all the hospitals. The number of organ donors is so small compared to the need. This can substantially be attributed to ignorance, fear, customary and religious beliefs. Yet some of the unfortunate victims who die in road traffic accidents or those who die from bullet wounds die with ironically healthy organs.

Organs that can be donated include the heart, lungs, liver, kidneys, pancreas and small intestines. Tissues that can be donated include skin, bone, bone marrow, ligaments, tendons, fascia, veins, heart valves and corneas.

The concept of organ harvesting is not discussed in Kenya. Organ harvesting and donation involves the removal of functioning organs from the bodies of recently deceased persons and implanting them in the bodies of sick and often terminally ill persons. Organ harvesting is a surgical procedure that removes organs or tissues for reuse, such as in organ transplantation. This space is mired in ethical debate and heavily regulated, but it has largely become an accepted medical practice.

All humans have the right to bodily integrity. It is no wonder there is a big need for legislative structures to regulate the delicate space. If the space is not regulated, then we shall all be exposed to threats of being killed for commercial purposes. This is not very new to Kenyans. A couple of years ago, we had a couple of instances where people would lose vital body organs from the mortuary. These would later be offered in the black market.

In the recent case of Flynn Vs. Holder (2011), the US appeals court allowed donors to sell their bone-marrow tissue. The court's decision may well help thousands of sick patients who need bone-marrow transplants to survive in America.

The lawsuit was brought by a group of cancer patients, parents and bone-marrow-donation advocates against the government over the federal law banning the buying and selling of bodily organs. The plaintiffs were led by Doreen Flynn, who has three daughters who suffer from Fanconi anaemia, a blood disorder that requires bone-marrow transplants to treat.

Globally some people are known to donate their healthy body organs to relatives and to research centres.

In some countries, some people usually let their wishes in relation to their bodily organs known through their wills. Others who cannot afford to prepare wills simply express their expectation to their loved ones. However once someone is dead, many a times the relatives do not stick to the wishes of the departed relative.

To help meet the need for organ and tissue donors, the Ohio legislature has passed several pieces of legislation to increase the dissemination of information around the delicate issue of organ and tissue donation. The legislation has made it easy for Ohioans to become donors, and provide workplace incentives for employees who serve as living donors.

In Kenya, the Kenya National Patients rights Charter (2013) gives patients the right to donate their organs upon their demise. However, we probably need a lot of awareness creation and public participation in order to enable Kenyans to better understand the pros and cons of tissue and organ donation.

Shall we expect to soon read the headlines that a disgruntled woman allegedly demanded that her ex-husband, who had left her for one of her friends, return the kidney she had donated to him during their relationship? Is the organ then part of matrimonial property when it is donated to a spouse?

Although this takes it to extremes, it is not unheard of during a separation for one party to demand that a former spouse or partner give up the physical benefits endowed upon them by their former partners through plastic surgery or similar. Who knows? Kenyans have become aware of their rights and the Bill of rights.

Although there are no decided cases on such an issue, it is almost certain that the courts would refuse to make any reversal order requiring a party to reverse surgery conducted during the relationship, whether funded by the other party or otherwise.

Aside from the potential health complications and moral quandaries associated with such an order, the Family Law Act 1975 (Cth)-Australia only grants the Court the power to adjust parties’ interests in the “property” of the marriage. Although the term “property” has a wide definition and the courts have been reluctant to place any limits on the concept, it is almost certain that it would be held that organs and/or implants within the body do not constitute property.

There is no doubt a need to regulate, monitor and control the organ and tissue transplant in the light of forever emerging human rights, traffickers, organ tourists, morality, religion, customs amongst a host of parameters. How do we strike a balance? Towards discharging its constitutional obligations in ensuring that there is right to health, the legislature has generated a Bill known as The Health Bill.

Article 10 of  the constitution allows you and I to engage in public participation as one of the principles of governance and national values. Let us openly talk about the Health Bill.



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