• A specific law on organ transplantation will help the country increase the number of organ donors, both living and deceased
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Besides being lifesaving, organ transplantation is the only available treatment for certain end-stage organ failure and as treatment for chronic kidney failure, it is the most clinically and cost-effective treatment. The potential of organ transplantation is dwarfed by setbacks such as shortage of organs as well as poor legislation and policies governing the same. Such challenges are not only causing preventable deaths but also fuelling the commercialisation of organs.
There have been efforts around the globe to improve this area. In the year 2010 for instance, during the Sixty-third World Health Assembly, the World Health Organization Guiding Principles on Human Cell, Tissue and Organ Transplantation were adopted. These principles intend provide an orderly, ethical and acceptable way for the acquisition and transplantation of human cells, tissues and organs. During this assembly, countries were urged to use the principles as a guide while formulating organ transplantation laws.
Commercialisation of organs, also known as human organ trafficking, was listed as the fifth most lucrative transnational crime by the Global Financial Integrity in its Transnational Crime and the Developing World Report of 2017. To curb this vice, the Declaration of Istanbul, adopted in the year 2008 and updated in the year 2018, provides ethical guidelines for medical practitioners and lawmakers to maximise the benefits of transplantation while ensuring the same is enjoyed equitably among those in need without employing unethical and exploitative means.
Currently, systems such as the UK and the US are moving to amend their laws to maximise the potential of organ transplantation. One way they are seeking to do this is by changing the system of organ donation and allowing for reimbursement of living donors. England, for instance, will start using a new law from August 2020, the Organ Donation (Deemed Consent) Act, 2019, which will change the system of donation to an ‘opt out’ system. This way, every adult will be considered a donor unless they have expressly decided not to or are in the excluded groups. The US, on the other hand, is proposing new rules to increase the number of organ transplants by, among other things, reimbursing living donors for lost wages during hospitalisation and recovery.
Here in Kenya, before the enactment of the Health Act 2017, organ transplantation was being governed by the Human Tissue Act Cap 252, which is not comprehensive. The enactment of the Health Act 2017, being the first legislation in Kenya to extensively provide for transplantation services, provided hope to patients requiring transplants. However, these patients are yet to realise their health rights as provided for in this Act. This calls for measures to enact a more articulate and specific legislation that will address transplantation matters comprehensively.
A specific law on organ transplantation will help the country increase the number of organ donors, both living and deceased. The Health Act 2017 does not provide for non-related organ transplant [where an organ is donated by someone not related to the recipient], and this limits the pool of living donors. The Health Act 2017 also fails to define important concepts such as death, which is key in facilitating deceased transplantations. These are some of the key things that the much-needed law in this area will help cure.
A new law would also help shape opinions among Kenyans in matters organ transplantation. Currently, there exists rudimentary views on transplantation, and having a new law would heighten advocacy in this area. This would also reduce the number of Kenyan patients who opt to seek transplantation services abroad, as it will instill a sense of legal assurance to donors, recipients and the medical practitioners involved.
Kenya should benchmark other acclaimed health systems with requisite legislation on transplantation and learn from their mistakes and successes. If employed, these lessons, together with the existing international guidelines, will guide the country in creating an effective transplantation law.