Legal aspects of organ trafficking – Part 2
Continued from yesterday
Perhaps the most scandalous of the Act are sections 51, 52 and 53. Section 51 authorizes the removal of a tissue or an organ of a living person for transplantation in another living person without any consent clause.
The only thing it says is that the removal should be carried out “at a hospital authorized for that purpose” or with “the written authority of a medical practitioner in charge of the clinical services….”. Section 52 authorizes a registered medical practitioner or dentist to carry out the heinous crime. Section 53 authorizes the sale or trade-in of human tissues like female eggs cells, sperms, cornea etc. provided that payment from the sale or trade is a “reasonable payments are made in an appropriate health establishment for procurement of, tissue, blood or blood products.”
I earlier said that I participated in the Public Hearing on the National Health Bill 2012. The Bill was sponsored by Senator Ifeanyi Okowa, and co-sponsored by Senators Chris Ngige, Bukola Saraki, Paulinus Igwe, Danladi Sankara, Christopher Omoworare, Gamawa Garba, Sahabi Ya’u and Sefiu Kaka.
The Public Hearing took place in the Hearing Room of the Senate on 11th February 2013. The Public Hearing was organized by the Senate Health Committee. The Public Hearing Room of the Senate was packed full of many stakeholders which included the Health Reform Foundation of Nigeria; the Medical and Health Workers Association of Nigeria; The Nigerian Medical Association (NMA); The Pharmaceutical Association of Nigeria; The Catholic Bishops Conference of Nigeria; Project for Human Development; Happy Home Foundation; Doctors Health Initiative; Nigerian Physiotherapy Association; Association of Medical Laboratory; Nigerian Radiographers Association; Catholic Medical Association of Nigeria; Catholic Women Organization (CWO); the trado-medical Association of Nigeria et cetera. Declaring the Public Hearing open, the then Deputy Senate President, Ike Ekweremadu, urged all the stakeholders present to employ their best initiatives in articulating a National Health Bill that would improve the country’s health system.
On his part, the then Chairman of, the Senate Health Committee, Senator Ifeanyi Okowa, who also presided over Public Hearing, stated that the National Health Bill 2012 was an enabling Bill aimed at regulating, developing and managing the country’s national health system and set standards for rendering health services in Nigeria.
During the Public Hearing, the stakeholders argued that trafficking in human eggs, embryos and embryonic stem cell research had become a multibillion-dollar business worldwide. Therefore, under the pretext of regulating organ trafficking or harvesting in Nigeria our government should not legalize the multi-billion illegal business otherwise, it would be difficult to stamp out in the future owing to our ineffective policing system, poor judicial checks and regulatory policies. All the stakeholders also agreed that Nigeria needed a Health Act that aimed at overhauling the country’s health care system in order to improve the medical facilities in our hospitals; save billions of Naira squandered on medical treatment abroad every year; avoid untimely deaths resulting from diseases and prevent high infant mortality and maternal mortality rates. It was in this spirit that the vexatious section 51 (1) (a) (b) of the Bill was amended to read thus: “No person shall:- (a) manipulate any genetic material, including genetic material of human gametes, zygotes or embryos; or (b) engage in any activity, including the nuclear transfer or embryo splitting, for the purpose of the reproductive cloning of a human being”.
Section 51 (2) was also amended to read: “No person shall import or export human zygotes or embryos in Nigeria”. While section 51(3) remains thus: “Any person who contravenes a provision of this section or who fails to comply therewith is guilty of an offence and is liable on conviction to imprisonment for a minimum of five years with no option of fine”
But shockingly, after the National Health Bill was signed into law by then-President Jonathan we discovered that the aforementioned vexatious sections 48(1)(b), 48(2), 51, 52 and 53 which the stakeholders complained about and resolved that they should be amended were still retained unamended in the Act. Section 51 authorizing the removal of a tissue or an organ of a living person for transplantation in another living person without any consent clause was retained in the Act. It is my humble view that sections 48(1) (b), 48(2), 49, 51, 52 and 53 of the National Health Act permit, inter alia, the removal of the tissue, blood or blood product from another living person without his or her informed consent for “medical investigations” and “treatment in emergency cases” and the selling of and trading in human tissues and blood products are in violation of section 33 (right to life); section 34 (right to dignity of the human person); section 37 (right to privacy) and section 38 (right to freedom of thought, conscience and religion) of the 1999 Constitution as well as Articles 2, 4, 5, 6 and 8 of the African Charter on Human & Peoples Rights (Ratification Enforcement) Act, cap 10. Granted, rights in sections 37 and 38 of the 1999 Constitution are curtailed under section 45(1) of the same Constitution to the effect that nothing in sections 37 and 38 shall invalidate any law that is reasonably justifiable in a democratic society:
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.
But the removal of a tissue or an organ of a living person without his or her consent for transplantation in another living person cannot be a law that is reasonably justifiable in a democratic society as envisaged under section 45(1) of the 1999 Constitution. Therefore sections 48(1) (b), 48(2), 49, 51, 52 and 53 in the National Health Act are unconstitutional and therefore null and void. By empowering medical doctors to play God and decide when to remove organs from living persons without their consent, section 51 of the Act constitutes an infringement of the rights of citizens to life, dignity of their persons as well as the rights to privacy and freedom of thought, conscience and religion as guaranteed by Section 33, 34, 37 and 38 of the Constitution.
To be continued tomorrow
Ekwowusi is the chairman, human and Constitutional Rights Committee of the African Bar Association