Organ donation is the transplant of an organ or tissue from a donor to a recipient who needs that organ. Organ transplantation is a life-saving surgical operation in which a failed human organ in the human body is replaced with a functioning one from a donor.
Organ donation is important because it gives the recipient another chance to live a healthy and productive life. For most recipients, it is a matter of life and death. Organ donation does not only benefit the recipient but also positively affects the families and acquaintances of recipients who benefit from the recipient’s improved health after an organ transplant. There are, however, far more cases of persons in need of an organ transplant than there are donors who want to make an organ donation. Some countries have tried to tackle this challenge by encouraging their citizens to make the decision to donate their organs after their demise. Nevertheless, there is still a wide gap between the demand for organs and available organ donors. This gap has led to the emergence of a black market for the sale and trafficking of organs.
Organ trafficking is an illegal trade that is thriving not only in Nigeria but around the world. Human organs such as the liver and kidney among others are harvested from the body of a person without that person’s consent and those organs are then trafficked to willing buyers. A Global Financial Integrity Report estimates that 10% of all organ transplants are done using trafficked organs. The former Director-General of NAPTIP, Julie Okah-Donli, who is also the Chairperson of the United Nations Voluntary Trust Fund for Victims of Trafficking in Persons (UNVTF) said in a recent interview that most cases of organ harvesting in Nigeria are treated as ritual murder by law enforcement agencies. The classification of organ harvesting cases as ritual killings masks the magnitude of the business of organ harvesting and trafficking in Nigeria.
Nigerian law allows the donation of organs for humanitarian purposes but prohibits the financial consideration for the “donation” of organs. Section 48 (1) of the National Health Act 2015 permits the removal of tissue, blood or blood product from the body of another living person provided that that the informed consent of the donor has been granted in the prescribed manner. By this provision, a person may donate a human organ to a recipient who needs it. The National Health Act 2014 and the Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015 prohibit the sale and purchase of human organs. This prohibition extends to instances where the donor consented to the removal of the organ.
Section 48 (2) (b) of the National Health Act provides that “A tissue, blood or a blood product shall not be removed from the body of another living person for purpose of merchandise, sale, or commercial purposes.”
Section 53 (1) of the National Health Act makes it an offence for a person
(a) who has donated tissue, blood or a blood product to receive any form of financial or other reward for such donation, except for the reimbursement of reasonable costs incurred by him or her to provide such donation; and
(b) to sell or trade in tissue, blood, blood products except for reasonable payments made in appropriate health establishment for the procurement of tissues, blood or blood products.”
“Tissue” is defined in Section 64 of the National Health Act to mean “human tissue, and includes flesh, bone, a gland, an organ, skin, bone marrow or body fluid, but excludes blood or a gamete”.
The Trafficking in Persons (Prohibition) Enforcement and Administration Act prohibits organ harvesting and trafficking and provides in section 20 as follows–
“(1) Any person who-
(a) through force, deception, threat, debt bondage or any form of coercion-
(i) abuses a position of power or situation of dominance or authority arising from a given circumstance; or
(ii) abuses a vulnerable situation; or
(b) through the giving or receiving of payments or benefits in order to induce or obtain the consent of a person directly or through another person who has control over him; enlists, transports, delivers, accommodates or takes in another person for the purpose of removing the person's organs, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and a fine of not less than N5,000,000.00.
(2) Without prejudice to the provisions of subsection (1) of this section, a person who procures or offers any person, assists or is involved in anyway -
(a) in the removal of human organs; or
(b) buying and selling of human organs, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and to a fine of not less than N5,000,000.00.
(3) Any person who enlists, transports, delivers, accommodates or takes in another person under the age of 18 years for the purpose of removing the person's organs, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and a fine of not less than N5,000,000.00.”
From these provisions, the trafficking of human organs is prohibited in Nigeria. What may be considered interesting is the prohibition of the sale of a human organ even when the donor has consented to the removal and donation of his organ. The National Health Act reproduced above makes it an offence for the donor to “receive any form of financial or other reward for such donation”. This position in Nigerian law on the prohibition of the sale of organs is in line with the position of the law in most countries. An exception to this global trend that prohibits the consensual removal and sale of organs is Iran, whose government has legalized and regulated the sale of organs from willing donors to those in need of an organ transplant.
The Human Tissue Act 2004 in the United Kingdom and the National Organ Transplant Act 1984 in the United States both prohibit the donor of an organ from receiving money or any other reward for the organ donation. The rationale is that organ donation should be completely altruistic and should not contain any element of coercion or inducement to the donor. The donor should have no reward other than the satisfaction that he had helped another human life. Another argument for this principle is the belief that the rich who need organs will have an unfair advantage in preserving their lives over others on the organ waiting list. From the perspective of the not too rich donor, it has been argued that the poor who are already disadvantaged are likely to be exploited to give up their organs in exchange for money.
Nevertheless, as long as the need for organ donation far exceeds the availability of donors willing to give their organs at no charge, the organ black market will likely continue to thrive. Law enforcement agencies therefore must be vigilant and proactive in curbing the emerging nuances in this illegal enterprise. A new approach must be adopted to crimes that have the appearances of ritual killings. A thorough investigation of such murders will help in trailing and identifying the criminals who make up the organ trafficking rings for prosecution and conviction under Nigerian law. The Nigeria Medical Association and the public should be sensitized on the provisions of the law and mobilized to become reporters and whistle blowers on the crime of organ trafficking in Nigeria.