Organ transplant is the process of surgically removing an organ or tissue from a person and placing it in another. Consent is central to organ transplant as the absence of consent would make the transplant unlawful.
Regulation of organ transplant in Nigeria
The law that regulates the transplant of organs in Nigeria are (i) the Constitution; (ii) National Health Act; (iii) Trafficking in Persons (Prohibition) Enforcement and Administration Act; (iv) International Treaties ratified by Nigeria including the Universal Declaration of Humans Right, African Charter on Human and Peoples’ Right and the UN Convention Against Transnational Crime; and (v) the Code of Medical Ethics.
What is consent
National Health Act 2014 (NHA)
The NHA prohibits the removal of tissue, blood or blood product from the body of a living person for any purpose except with the informed consent of the donor. The Act provides that a regulation will be made pursuant to the Act which will provide the prescribed form of consent but none has been made yet.
The NHA attempts to describe informed consent, albeit, in the context of a user, but this definition does not capture the donor of an organ. To determine what constitutes informed consent, recourse may be had to the Code of Ethics for Medical Ethics in Nigeria as the NHA provides that only licenced practitioners shall undertake the transplant of organs.
The code prescribes practitioners involved in procedures requiring the consent of the patient, his relation or appropriate public authority must ensure that the appropriate consent is obtained before any procedure is done.
Consent forms must be printed or written, and proper counselling should precede the signing of the form. In procedures difficult to reverse or involving the removal of organs, at least 3 counselling sessions should be done to give the patient ample time to make an informed decision.
Consent may be withdrawn at any time before transplant in the same way it was given.
Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015
This act provides that any person who through force, deception, threat, debt bondage, any form of coercion, abuse of position or situation of dominance, abuse of a vulnerable situation or through the giving or receiving of payments or benefits in order to induce or obtain consent of a person directly or through another person who has control over him; enlists, transports, delivers, accommodates or takes another person for the purpose of removing the person’s organs, commits an offense and is liable on conviction to a term of not less than 7 years and a fine of not less than N5m. The procurement, assistance, offer or any involvement in the removal of human organs is liable to the same penalty.
Here the consent of a victim is irrelevant and the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation is trafficking even if it does not involve any of the means set forth in the definition of trafficking.
Read also: Ekweremadu: UK court says organ donor not minor
Consent under the Human Tissues Act (HTA) UK
The HTA regulates the removal, storage and use of human organs. The act has more elaborate provisions on obtaining the consent of a donor.
Section 1 of the Act provides that an organ or tissue transplant shall be lawful if the appropriate consent of the donor is obtained.
It is an offence to harvest an organ without appropriate consent unless it is reasonably believed that there is an appropriate consent or there is presumed consent. A person found guilty is liable upon conviction to imprisonment for a term not exceeding 3 years, a fine or both.
Does reward vitiate consent?
Section 53 of the NHA criminalizes the receipt of any form of financial reward by a donor for the sale or trade in tissue, blood or blood products except for reasonable payments made in appropriate health establishment for the procurement of tissues, blood or blood products.
Under the UK regime, a person commits an offence if he removes or uses from the body of a living person or a person whom he might reasonably be expected to know is alive, any transplantable material for the purpose of transplantation. However, the Secretary of State may make a regulation to permit where no reward has been given or such other conditions specified in the regulations are complied with.
Reward is defined in the HTA as financial or other material advantage. Reward does not include money or money’s worth for defraying or reimbursing: (i) any expenses incurred in connection with transportation, removing, preparing, preserving or storing the material; (ii) any liability incurred in respect of expenses incurred by a third party in connection with a above; (iii) payment to a license holder; and (iv) any expense for loss of earnings incurred by the person from whose body the material comes from so far as reasonably and directly attributable to his supplying the material from his body.
Conclusion
Central to the Nigeria and UK regime for organ donation is the fact that informed consent of the donor must be obtained and must not have been induced by the offer or promise of a reward. While the UK regime is clear and definite on what constitutes appropriate consent for the different categories of donors, the Nigerian laws leave room for conjecture.
Makanjuola, a partner at Olaniwun Ajayi LP, and Alao, an associate at Olaniwun Ajayi LP, write from Lagos
