A case for the legalisation of organ sale

Often, when in a financial fix, it is common joke from friends to advise one to sell their organs. Well, one could sell his or her organs, but it is illegal. In Kenya, the law on organ sales is deficient. The Human Tissue Act Cap 252 only deals with organs or tissue of a dead person. Kenya follows international law and therefore, the clearest law on prohibition of sale of organs is the World Health Organisation Principles on Human Organ Transplantation which are by the World Health Assembly resolution WHA40.13 of May 1987. There is need, though, to domesticate these principles or even make new laws on organ sales.

Many people in East Africa need organ transplants, especially for kidneys. It may have to do with lifestyle. It is however unfortunate that most patients never get a donor and they die of kidney disease.

It is acceptable world over that it is illegal to buy or sell organs. There are a few countries in the world which allow organ sale and purchase such as Iran, Singapore and Australia.

It is however allowed to receive payment for expenses incurred in the donation of one’s organs.

When one talks of a human organ, it includes, a human kidney, liver, heart, lung, pancreas, or any other human organ or nonrenewable or non-regenerative tissue except plasma or sperm.

Out of 10 people in hospital waiting for a kind person to donate an organ, there is only one such donor, every year.  The variation is worrying, and it is obvious, there is a need for human organs.

What if people are free to sell their organs?

Gerald Dwoking in his Market and Morals: The case for Organ Sales, says,

“We currently accept the legitimacy of noncommercial solid-organ donations. We also accept the legitimacy of the sale of blood, semen, ova, hair and tissue. By doing so, we accept the idea that individuals have the right to dispose of their organs and other bodily parts if they so choose. By recognizing such a right we respect the bodily autonomy of individuals, that is, their capacity to make choices about how their body is to be treated by others. By recognizing such a right, we also produce good consequences for others, that is save lives, allow infertile couples to have children, further medical research and so on. But the primary good achieved by such a right is the recognition of the individual as sovereign over his own body. A market transaction is one species of the larger class of voluntary transactions. Allowing people to sell things is one way of recognizing their sphere of control. Finally, by allowing individuals to either barter or sell something, we increase their level of well-being. Such transactions are voluntary, they are presumably only engaged in when the individual believes himself or herself better off without the good and with the cash (or an alternative good in the case of barter) than without the cash and with the good. So, markets can increase both autonomy and well-being”


The reason for prohibition of organ sales

Just like it is irrational to say it is okay to buy good grades at University, opposers of the legitimisation of sale of organs say that it is illegal because of the following reasons:

  1. It subjects the poor to exploitation

It is presumed that it is only those who are poor, those who are financially desperate, that will want to sell their organs.  Because of their poverty, they will not get a good price for their organs if the rich have access to a readily available market for organs.

This however can be cured by controlling the market. Bare minimums for the price of organs should be set so people can only get at least, the price so stated as the bare minimum.

  1. Distributional effects

Under this argument, it is said that if the market is legalised, then the poor will not afford organs. The rich will access them alone because they can afford them.

This does not have anything to do with a free market, but has everything to do with the health care control. If everyone can access medical insurance cover, it will not be a case of the poor not affording organs.

  1. Irreversibility

When an organ is sold, the state of the seller is irreversible.

But if the system allows plastic surgery where people are getting breast implants, nose jobs and buttocks implants, surely it is not sustainable to say that organ sale is not legal because it is irreversible.

  1. More choices not always better

Gerald Dworkin presents this argument as

“Applied to the sale of organs, the claim is that once a market price is established for organs, individuals who choose not to sell do so in the knowledge that they have made a choice which leaves their family worse off economically than they might have been. Individuals are choosing to decline an option which they formerly did not have. They may be psychically worse off than if they never had such a choice

Whereas this is surely true, one cannot undermine the psychic costs faced by families who are waiting on a kind donor to save their loved one. However, choice is good. It is a form of empowerment. Choice gives options.

  1. Commodification or organs is simply unacceptable

This is more of a religious or spiritual argument, which is hard to sustain before people who do not share your belief.

Our jurisdiction is not faced with the difficulty of the discussion on sale of organs but our hospitals are packed with people who are desperately in need of an organ to save their lives.

If only our system allowed the sale of organs, we would have less and lesser harambees for people who seek to fly to India to get a kidney transplant from a dead man.


This article appears in our weekly digital law magazine, The Deuteronomy Vol 8, Issue 1 of October 4th, 2016

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