Consent is at the heart of organ donation – Abugu, President, Medical Law Association
Uwakwe Abugu is a Professor of Law at the Faculty of Law, University of Abuja, specializing in medical law and ethics. Abugu is the current Vice Chancellor of Ave Maria University, Piyanko, Nasarawa State, as well as the President of the Medical Law Professional Association of Nigeria. The President of MELPAN discusses the laws governing organ donation in Nigeria and other countries in this interview with LARA ADEJORO
What exactly is an organ transplant?
An organ transplant is the removal of an organ from a person for the purpose of transplanting it into a living person whose organ is either diseased, has gone bad, or does not exist. The procedure is a modern development in medical and health care delivery systems that is growing everywhere.
In developed countries, it has become a means of saving humanity from the scourge of incurable diseases. An organ transplant in itself is a very good and beneficial intervention of a human being in the life of another. One author described an organ transplant as a way to confirm and share humanity with your neighbor.
As of 2020, there was a law passed by the UK government which provides that every living human being is deemed to have consented to the transplantation or removal of their organs when they die for the purpose of donating for save someone’s life. During your lifetime, you are presumed to have consented to your organ, upon your death, being donated in the service of humanity. Thus, you have the possibility of adhering or not to the law. Membership is when you don’t do anything about it, but if you want to opt out, you must register your name in the National Health Service Organ Donation Registry. If you do not register, you can inform your loved one that when you die, your organ should not be donated.
What are the implications of becoming an organ donor and what precautions should be taken before and after donating an organ?
The implication of organ donation should be left to doctors. But what we do know is that an organ that can be donated is an organ that, if you donate it, will not become harmful to your system. For example, before donating your kidney, you must be certified to be able to donate and ensure that both of your kidneys are actively functioning, and science has proven that a human being can live a healthy life to term with a kidney.
Is there an age limit for donating an organ?
Not really, but the law has provided that if you are under 18, you can donate an organ, but you may not have the medical and legal capacity to consent, so your consent will now become consent your parents or guardian. In addition, the age limit for organ donation depends on the scientific investigation of the proposed donor.
Medical staff may decide that you are too young to donate, so in this case you may not be able to donate. However, once medical staff confirm that your organ is fully developed and can be used to replace another person’s organ, you can donate it.
This means that if you are over 18 you can give your consent to donate, but if you are under 18 you are presumed by law to be unable to consent. Even with someone who is under 18, if he doesn’t want to donate, parents can’t compel him to donate, but if he wants to donate, his parental consent becomes mandatory.
Following that is what we call Gillick Competence, which is when someone is under 18 but over 16 and has the mental capacity to understand the consequences of their action. In this case, even if the parents refuse their consent and the court finds that you understand the consequences of what you are getting into, the court may allow you to consent, thus overriding the parents’ refusal of consent.
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, established several provisions governing organ transplants or tissue transplants as the law uses them. It prohibits the provision of organ transplant services by any hospital, except a duly licensed hospital, and with the written consent of the medical officer in charge of the hospital’s medical services. If a hospital is authorized to provide organ transplants, the physician in charge of clinical services would have given written consent for these services to be provided by the hospital.
The law also prohibits the commercialization or commodification of human organs insofar as if a person is involved in the sale, procurement or distribution of human organs, he may be in violation of the law, and the law has provided provisions penalties for the conditions of imprisonment or fine. If you trade an organ, you are liable to a N1 million fine or at least two years in prison.
Therefore, the essence of organ non-commercialization is that a donor is prohibited by law from donating an organ in a commercial transaction. But if you incurred expenses in the donation process, you may be reimbursed for those expenses. There are other provisions of Nigerian law in the National Health Act regarding organ donation. The law stipulates that there can be no removal of organs or tissues without the informed consent of the organ donor.
Consent is at the heart of organ donation and at the heart of all medical procedures as under no circumstances should medical personnel touch or treat a patient without their consent, however beneficial or harmless the act or how insane the attitude of the patient is. decision can be.
When you apply this to organ donation, you will find that consent must be informed because you must have informed the organ donor of the nature and purpose of the procedure, the risk involved, and other consequences. Consent should not be under duress or promise of benefit. Any act of organ removal or donation without consent will amount to assault and battery.
What are the differences between Nigerian laws and those of other countries governing the removal and transplantation of organs?
Under Nigerian law, there is no presumption of presumed consent to organ donation, unlike the provision in UK law that a living person is presumed to have consented to organ donation upon death, unless she objects.
Nigerian law has many provisions for organ donation. In the NHA, sections 48 to 57, many provisions are incorporated and cover most of the provisions of the English Human Tissue Act 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 law which provides that once you are a living person you are presumed to have consented that, upon your death, you donate your affected organ, unless you unsubscribe. this general provision of the law.
Under the English HTA 2004, the only authorized organ donors and recipients are those who are genetically linked. If you are not genetically related, there is an exception where you must prove that it is not for commercial purposes and you must have voluntarily consented to the donation.
What are the body organs of a healthy person that can be donated?
The first organ donation developed by scientists was kidney donation, in the 1950s, but in the 1960s further advancements were made to the extent that lungs and hearts were donated. Now you can even donate part of the liver, a small part of the intestine, pancreas, etc. If you donated your kidney, the second kidney will function normally, and it is possible to donate your lung if the other lung is functioning normally.
Does Nigeria have organ banks?
At present, 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 banks which they use when needed, but that does not mean that Nigeria has an organ bank system. Any organ bank you see in Nigeria is an individual arrangement of hospitals.
Is it acceptable to remunerate an organ donor in cash or in kind, such as the awarding of scholarships, for example?
As I said earlier, organ donation should be altruistic and motivated by the need to help humanity and not for commercial gain or as a result of any inducement. In the meantime, if an organ donor incurs reasonable expenses to donate, they are entitled to reimbursement.
Is there a penalty for someone compensating a donor?
The law states that a fine of 1 million naira or imprisonment for at least two years is prescribed, but this does not mean that it must be two years. The court has the discretion to sentence you to life imprisonment or twenty years imprisonment, provided the sentence is not less than two years.
What role, if any, do Nigerian hospitals play in obtaining organs for members of the public in need?
Organ donation is still in its infancy in Nigeria due to our culture, religion and other issues and challenges. If Nigerian hospitals are aware of the provisions of the NHA, they need not enter into organ transplant departments without the clearance of the National Tertiary Institution Standard Committee for which the provision is made in the NHA. It is the committee that can authorize a hospital to offer organ transplant services.