Kidney scandal: call for changes to law
September 25, 2005 Edition 1
Fred Kockot
The alleged trafficking in live kidney donors in South Africa has sparked calls for a tightening of the laws governing transplants. Fred Kockott reports
In terms of the Human Tissue Act it is illegal to sell or buy an organ - as allegedly happened in at least 109 kidney transplants at Durban's St Augustines Hospital between June 2001 and November 2003.
Six prominent Durban doctors associated with Netcare now face charges of fraud, contravening the Human Tissue Act and assault with intent to do grievous bodily harm in connection with these operations.
The operations involved mostly Israeli recipients, who allegedly paid for the kidneys.
The so-called kidney vendors were allegedly flown in from Brazil, Romania and Israel. According to a provisional charge sheet, the kidney donors were never appraised of the material risks and consequences of having a kidney removed.
This alleged trafficking of donors into South Africa also contravened an international protocol aimed at preventing the trafficking of people for exploitation, including the removal of their organs.
The South African government and more than 80 other countries signed the Palmero Protocol in December 2000 in an effort "to prevent and suppress the trafficking of human
persons".
Included in the definition of human trafficking was the recruitment of a person by deception, abuse of power or position of vulnerability, or the giving payments or benefits to achieve the consent of a person for the purpose of exploitation.
This means that had South Africa introduced legislation to support this international protocol, people allegedly involved in recruiting the kidney donors might have also faced charges of human trafficking.
But no such laws were introduced, and only now - five years after the protocol was signed - is appropriate legislation being considered.
Following the arrest of six Durban doctors, two transplant clinic staff and an English/ Hebrew translator, the Health Department is also considering tightening legislation governing live donor transplants.
The recommended changes have been drafted by an independent forensic consultant, Johan Wessels, who was appointed by the Health Department to monitor and help police investigations into what Netcare called its Israeli transplant programme.
Wessels said in instances where a donor and recipient were not blood relatives, including a husband and wife, ministerial consent was required.
In addition, guidelines governing living donor transplants were also approved by a ministerial committee following extensive consultation and workshops with the medical fraternity in the 1990s.
"But the department (of health) did not envisage that it would be necessary to have these guidelines enacted into the statute books, as they had been endorsed by surgeons and practitioners," said Wessels.
"The medical profession is regarded highly, and in dealing with doctors the department did not think they would have to use legislation to ensure strict adherence to these procedures, particularly those aimed at protecting the health of unrelated living donors," said Wessels.
But Wessels said such steps had now become necessary.
"There was a dramatic escalation in the number of kidney transplant operations at Netcare hospitals in 2002 and 2003," said Wessels.
This was directly attributable to unrelated living donors from Israel and Brazil being flown into the country for transplant operations.
Lucrative
"The practice started long before the police became aware of it, and the department only became aware of it from the police," said Wessels.
He added that the police investigations, and subsequent arrests, had immediately halted the practice.
Wessels said his recommended amendments to the Human Tissue Act had been submitted to the department, along with recommendations on steps to be taken against individuals and institutions implicated in illegal transplant operations or contravening professional guidelines.
He said what had allegedly happened in South Africa had mirrored a growing worldwide problem.
"It's a global thing, like drug trafficking. It's startling how serious it is, and how lucrative the trade in organs has become," said Wessels.
In international medical journals, vigorous debates for and against the idea of allowing government-regulated sale of organs are published regularly. Proponents of the idea argue that a regulated trade in human tissue would effectively combat the growing international black market in organs, reduce a worldwide shortage of vital organs needed for transplants, and save many lives.
But Wessels rejects the idea.
"Putting a price tag on organs - making parts of the body a saleable commodity - is not a solution.
"The moment you put a value on something, you will have people who ignore all ethical and moral considerations, and exploit the situation."
"It's a given fact of human nature. If we had a severe drought, and 47 million tons of maize were donated to counter starvation, you can rest assured that about 10 million tons would be ripped off. Much worse things would happen if you allowed the sale of body parts."
Wessels said instead of a regulated trade involving living organ donors, the practice of people donating their organs after death needed to be vigorously and widely promoted.
"We need to take away the mystique and taboo of people donating organs after death. Just like there are well-publicised drives for blood donors, there needs to be a massive drive by the department to recruit more organ donors," said Wessels.
