An Examination of the National Health Act 2014:Organ Donation and Transplantation in Nigeria

The concept of organ transplantation was first conceived in Nigeria in 1980. However, the concept remained theoretical until the first kidney transplant was performed in 2000, as a result of the public health care system’s slow but steady decline. Other centers started to appear around the nation after that. While no formal research has been conducted in Nigeria, it was expected that the prevalence of end-stage renal disease (ESRD) would be between 200 and 300 per million people. Hemodialysis has been the primary method of managing ESRD patients in Nigeria, although this has not improved the patients’ quality of life.

More so, very few patients would afford to be on regularly prescribed hemodialysis because of the high cost of hemodialysis, which is much higher than that of a kidney transplant, which is $ 20000.00 to $ 30000.00. The transplantation program for other solid organs is yet to take off on a sustainable basis in Nigeria. There were four clinics in 2008, and over 100 patients had received successful kidney transplants at that time. For the first time ever, the University of Maiduguri Teaching Hospital successfully transplanted a kidney in

cooperation with other sister facilities around the nation. In order to teach and enhance the abilities of the native transplant team and ensure the long-term viability of organ transplantation in Nigeria, several partnerships with foreign transplant facilities have been established, particularly in the area of renal transplantation.

LEGAL FRAMEWORK FOR ORGAN DONATION AND TRANSPLANT

It is no longer an issue of debate that laws within Nigeria and Africa are slowly evolving to address the problems relating to medical practice. In Nigeria and other African countries, organ donation and transplantation are far from being a standard (or usual) form of medical treatment; organ donation networks and infrastructures are not yet well-developed in Nigeria. The sub-optimal transplantation capacity in Nigeria cannot trigger high demand for organs that will raise concerns concerning supply. 

This immunity is only limited to the problems of organ shortage but not to the issues of transplant tourism. In healthcare jurisdictions where organ transplantation has become a common form of medical treatment, some debates have ranged from appropriate structures and frameworks for increasing the supply of needed organs to liability issues arising from the destruction or misdirection of donated organs. In Nigeria, matters concerning human organ donation and transplantation are regulated by the National Health Act 2014

The Act has many laudable initiatives, such as the following

1. Prohibits any form of commercialization of human organs : Under the National Health Act, it is an offence punishable with a fine, or imprisonment, or both for a person who has donated tissue or organ to receive any form of financial reward, except reimbursement for the reasonable cost incurred by the donor in connection with the organ donation. The sale and trafficking of organs, especially in developing countries, has emerged as the major problem confronting the practice of organ transplantation worldwide Although there is a worldwide consensus that no payment should be made for organs from either living donors or deceased individuals, the shortage and scarcity of organs for transplantation and the associated long waiting period has led to what is termed “transplantation commercialism” in developing countries where regulation of transplantation practices is inadequate. The ethical issues here are linked to “body ownership,” and there seems to be no consensus on this issue.
2. The Prohibition of Organ Transplant outside unauthorized Hospitals. This law considers some hospitals as dutifully approved and organ donation and transplant centers. Services of donation and transplant cannot be carried out except in a duly authorized hospital and with the written permission of the medical practitioner in charge of clinical services at that hospital. For that purpose, the National Tertiary Hospital Commission is empowered to develop criteria for the approval of organ transplant facilities and the procedure for securing such support. The Act further provides that only duly qualified and registered medical practitioners are authorized to render transplantation services.
3. Sources of Organ Transplant. The Act also establishes the two sources of organs for transplantation, i.e. the living and cadaveric donors. Generally, the Act provides a framework for regulating the removal and use of human organs donated for transplantation. Part VI of the Act provides for the control of blood, blood products, tissue, and Gametes in humans. Tissue under the Act refers to “human tissue, including flesh, bone, a gland, an organ, skin, bone marrow or body fluid, but excludes blood or a gamete.”
4. Legal Consent consent. It is incontestable that the guiding principle for living donation under the Act is consent. Informed consent is only mentioned in relation to tissues, blood, and blood products without including organs under the Act is worrisome. It is probably a result of the interpretation of a tissue under the Act to include organs. This interpretation distorts clarity and certainty of the information the Act seeks to convey with a resultant effect of a non-inclusion of the word organs in the heading in part VI and section 48 (1) (a) of the Act. Although the Act also defined an organ, it is still inappropriate that tissue is interpreted to include organs. Under proper analysis, it should be the other way round as scientifically, organs are made up of tissues, and besides, tissues are regenerative in nature while organs are not.

ANALYSIS

The Act also provides for the removal of tissue, blood, or blood products from a living donor but only after the donor gives appropriate consent. Though the National Health Act provides for consent as a precondition before using and storing tissues and organs. It did not prescribe or offer an interpretation as to what constitutes an ‘appropriate consent’ for organ and tissue storage and use. This is alarming as the doctrine of informed consent is expected to be addressed and given a thorough discourse. It is an essential prerequisite for organ donation and transplant and the bedrock upon which any medical interference with the body is anchored. Although informed consent to some extent in section 23 of the Act is discussed, the part discussed merely covers ensuring that a ‘user’ in the language he understands receives full knowledge of the medical services to be carried out and his rights to refuse such. The manner in which the heading of section 23 is worded does not make for clarity and certainty. Subsequently, it seeks to clarify the presence of informed consent before any medical interference is lost. A statutory definition of consent must be contained in the Act to ensure clarity. Furthermore, in defining the scope of free and informed consent, the Act should state the factors that need to be considered in relation to adults, children, and persons who cannot consent to arrive at proper consent under the law.

As seen under the English law, the term ‘appropriate consent’ is defined in section one of the Human Tissue Act 2004, thereby clarifying the meaning and scope of appropriate consent related to children, adults , and adults who cannot consent. An undefined scope of informed consent could lead to the illegal procurement of organs. This will subsequently encourage a rise in organ commodification which is prohibited as any organ procured without the requisite appropriate consent will be unlawful and as such can no longer be termed a donation. Subsequently, when the necessary preconditions must be fulfilled before organ donation is not satisfied, it becomes effortless to procure these organs under the pretense of donation, which is unethical and inconsistent with international standards. In protecting the rights of individuals to bodily interference, donors must be allowed to understand what their status as donors entails and how to effectively exercise their rights as donors by consenting to the procedure of donation. Through it all, it is paramount that the donor’s consent is genuine and voluntary. 

In the provisions of the Act as it relates to consent in the donation of organs by deceased persons, there appears to be a problem in ensuring the practicality of that provision given the Nigerian societal values and the laws that govern probate in Nigeria. As a barrier to deceased organ donation, most societies in Nigeria and Africa are primarily impacted by cultural, social and religious beliefs and practices, in most of these cultures, the dead body is venerated as such any deceased organ donation procurement process may be viewed as a denigration of the dead. At present, no transplant facility in Nigeria undertakes a deceased donor program. As a limitation also, the National Health Insurance Scheme does not cover services for transplantation, which makes it essentially not affordable for the masses due to the enormous cost of the procedure. 

CONCLUSION 

Worldwide, organ transplantation has become the best medical treatment for patients with end-stage organ failure. Several legal, ethical, social, and religious perspectives concerning organ and tissue transplants worldwide and Nigeria, in particular, have been discussed, with abuses and controversies pointed out. 

RECOMMENDATIONS

In the light of the above, we recommend the following:

1. This paper recommends that Nigeria embrace the presumed consent form of cadaveric organ donation as it is one way to increase the supply of organs. Many countries like Chile, Israel, and Singapore, to mention a few, have taken the initiative to modify their laws to provide for the system of presumed consent as a form of consent for cadaveric organ donation. Even though our progress in organ transplantation as a country does not record high, and we may feel that going into the presumed consent regime may be way above us, the shortage problem will most likely arise to create problems in the future. Progressively, this is why laws are enacted not only for the pressing challenges of the moment but for most of the likely future challenges that may arise later. There is no doubt that Nigeria, just like other jurisdictions, will get to a stage in the future where her demands for organs will not be satisfied by the supply available. Hence, it will be good practice to ensure that there will be a full provision enactment to ensure more supply when that time comes.
2. The high rate of renal failure in Nigeria should attract corresponding financial consideration for citizens under the National Health Insurance Scheme. Most Nigerians can not afford organ transplantation, a 70% cushion of the medical bills should be handled by a subbody of NHIS specially created for renal failure patients.
3. At the international partnership at the global level, there are already measures on trafficking in human beings for the purposes of organ removal, such as the Council of Europe Convention on Action against Trafficking in Human Beings and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Nigeria should be a signatory to these Conventions.
4. Also, this paper recommends that section 55 of the National Health Act, which provides for the donation of organs by deceased persons, be amended to include a more practical and effective means of organ donation for deceased persons who wish to donate their organs after death. An effective means could be achieved either through the use of advance directives or Physician Orders for Life-Sustaining Treatment (POLST) documents. Advance directives are legal written agreements that may include a person’s wishes or preferences for medical care or a secure power of attorney in which an ill person authorizes another person to make medical care decisions on their behalf. A physician’s orders for life-sustaining treatment (POLST) documents are written doctor’s orders that reflect a person’s health care preferences. These documents are usually kept in the person’s medical records to determine the person’s health care preferences and instruct health personnel in an emergency. In some jurisdictions, people indicate their interest in donating to their driver’s license. While in some other countries, it is mandated by law that citizens who wish to acquire a driver’s licence state their wishes to donate or not before they get one
5. It is recommended that the definition of ‘consent’ and ‘the elements that constitute free and informed consent should be included in the Act to offer a further safeguard statutorily. This will ensure the provision of a more detailed and robust interpretation of consent statutorily, which will be achieved by addressing what constitutes valid consent as it relates to capable adults, incapable adults, and children. The particular section of law concerned with informed consent should be titled under what it seeks to clarify. It could be termed ‘informed consent’ or ‘appropriate consent’.
6. Medically, organs are made of tissues and not the other way round. The act defines tissue mean organ.It is recommended that the definition of a ’tissue’ be amended to erase any misunderstanding or uncertainty that could arise in the interpretation of ‘an organ’, especially regarding the principle of informed consent. It is further recommended that the Act also be modified to reflect the word ‘organs’ in both section 48 (1) (a) and in the heading in part VI of the Act.