CRITICAL REFLECTIONS ON COMBATING TRAFFICKING IN HUMAN ORGANS IN NIGERIA
The first successful human organ transplant occurred in 1954 in Peter Bent Brigham Hospital in Boston, United States when a kidney transplant was conducted between a set of twins. Heart, liver, and pancreas transplants were performed successfully by the late 1960s, while lung and intestinal organ procedures commenced in the 1980s. Since then, medical advances in the prevention and treatment of rejection has enabled growing increase in solid organ transplantation, leading to prolonged and improved quality of life for transplant patients.
The primary sources of organs for transplantation remain either living or deceased human donors and organ transplantation is fast becoming a victim of its own success, with the global demand for human organs far outpacing supply. Given the shortages in organ supply, desperate patients may resort to illegal strategies for obtaining organs. There is evidence to suggest that most commercial transplants involve organ donations by victims who suffer from one or multiple forms of vulnerability. Moreover, with an increase demand for human organs comes their increased potential profitability. This could in turn incentivise people in vulnerable positions to sell their organs, thereby supporting black market sustained by trafficking in human organs (TIHO) or human trafficking for organ removal (HTOR) and unethical medical personnel to meet the demand for human organs which altruistic systems fail to fulfill.
Nigeria is among the few sub-Saharan African countries that perform solid organ transplantation (kidney transplants specifically). Although Nigeria is not a recognised destination for TIHO or HTOR, the country is described as a source, transit and destination country for human trafficking. Organ trafficking presumably also occurs in the country often involving female victims; this assertion is supported by the prevalence of reports of ritual killings including organ harvesting across the country. Many Nigerians requiring organ transplants are forced to seek medical care abroad especially in India. Several factors vulnerability to TIHO in Nigeria, ranging from extreme poverty and armed conflicts to the cultural basis and presumptions around organ donation and the poor state of health infrastructure.
Legal Framework for the Regulation of Trafficking in Human Organs.
The legal framework for the control of trafficking in human organs in Nigeria mainly consists of provisions on consent, reward for donors or third parties, criminal law regime for the prosecution of offences involving trafficking in human organs and prevention measures.
Consent
Under Nigerian law, the constitution of the Federal Republic of Nigeria 1999 (CFRN) and the National Health Act 2014 (NHA) contains provisions that are relevant to consent of donors for organ removal. The constitution as provided in section 34, guarantees the right of every citizen to respect for the dignity of his or her person. It further provides against torture, inhuman and degrading treatment, or punishment. Under the NHA, section 51(1) provides that organ removal for transplant is only permissible when carried out in an authorised hospital, on the written authority of the medical practitioner authorised to act in the capacity. Furthermore, the NHA requires the consent of living donors. It provides that before any tissue is removed from a living person for any purpose, the informed consent of such a person must be obtained as provided under Section 48(1)(a) of NHA. The removal of organs and the consent requirements is limited to only adults. For a child less than 18 years of age, the law forbids the removal of tissue which is not replaceable by natural process.
Since consent is prerequisite to organ removal, a donor prior to removal for transplantation may revoke such a donation in whatever form it was made. Thus section 53 of the Act, may suggest that where the deceased fails to make such a donation in his lifetime, the family members can neither authorise the donation or revoke such a donation. It is apparent that the position in Nigeria limiting consent or donation to the deceased person and not to the family or any authorised person apart from the family, may undermine the availability and supply of organs for transplantation.
Reward for Donors or Third Parties in Exchange for Organs
Section 53(1)(a) of The NHA 2014 criminalizes any form of reward or donation in respect of a tissue. The only exception under thee Act is for the reimbursement of reasonable cost incurred by such a donor. It is also an offence under the NHA to trade in human tissues except in an appropriate health establishment authorised for the procurement of human tissues; the payment for the tissue must be a reasonable amount.
The restriction on reward for donors or third parties in exchange for organs is widespread beyond Nigera. The WHO Guiding Principles on Human Cells, Tissue and Organ Transplantation, Guiding Principle 5, requires explicitly that donors should offer their cells, tissues and organs freely, without any monetary payment or other rewards. The rationale for the prohibition of payment for the donation of human organs is that payment for the donation of human organs may undermine altruistic donations.
Criminal Law Regime for Trafficking in Human Organs
Failure to comply with the requirements of the NH with respect to organ removal attracts a fee of N1,000,000 (One Million naira) or imprisonment of at least two years or both fine and imprisonment upon conviction of the offender. The Act further criminalises the sale or trade in such organ for any monetary benefit on the part of the donor; punishment upon conviction ranges from a fine of N100,000 or imprisonment of not less than one year, to both such fine and imprisonment.
Apart from the NHA, the Trafficking in Persons (Prohibition, Enforcement and Administrative Act) 2015 (Trafficking Act) specifically prohibits, prevents, detects, prosecutes and punishes human trafficking in Nigeria. In order to meet these objectives, the Trafficking Act further provides for a synergy between national and international agaencies.
Preventive Measures
Through the National Agency for the Prohibition of Trafficking in Persons (NAPTIP), the government of Nigeria actively promotes public awareness for the prevention of human and organ trafficking across the country and prosecutes trafficking, the NAPTIP works with non-state actors, especially the non-governmental organisations, to facilitate education about trafficking in the country, its dangers and legal prosecutions, handle issues pertaining to migration and be able to identify any signs of human trafficking and respond effectively in the situation without any hesitation.
In conclusion, as a result of medical advances, organ transplantation can enable some categories of sick persons to enjoy the right to the highest attainable standard of health and to live in dignity. While the national framework addresses organ transplantation by providing a structure for consent, rewards, criminalization of illegal acts and preventive measures in Nigeria, some of the provisions are very restrictive and need to be reviewed in order to curtail TIHO such as the need to expand the legal regime for organ donation under the National Health Act to include living donors and possibly deceased persons who though they did not expressly consent to the donation in will under specific conditions.
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