Justification for the sale and purchase of human organs may be found in human rights law, which could endow individuals with the power to grow and sell their organs.
Medical technology has advanced to the point where one is able to grow one's own organs outside of one's body and thus accrue an interesting commodity - in so far as one is able to sell those organs to a third party who may indeed need the odd kidney, liver, spleen or eye.
The question that then arises is why should one not be able to sell such organs where there is supply and demand in terms of an ordinary commercial transaction?
Ultimate control
The approach to answering these questions is one that emanates from an area of the law that is not without controversy.
Euthanasia represents an interesting set of circumstances to the law in relation to the decision-making ability of an individual about his or her life and ultimately his or her body.
In Clarke v Hurst NO and Others, the High Court in Durban deliberated on whether a decision by a curator personae to authorise passive euthanasia would attract to him or her a charge of murder or culpable homicide.
The court was therefore faced with a decision concerning the legal liability for terminating a patient's life.
This decision turned principally on the directions issued by the patient during his lifetime to not to have his life prolonged artificially should the worst happen to him.
The court referred to a decision of the Supreme Court of New Jersey in the matter of Karen Quinlan1 in which the Court addressed, "the question of possible criminal liability flowing from the determination of the life of a patient in a persistent vegetative state. In that case the father applied to be appointed as guardian to his daughter who was in a persistent vegetative state with no hope of being restored to a cognitive life. He also applied to be given the power, as guardian to the patient, to authorise the discontinuance of all extraordinary procedures for sustaining the patient's vital processes."
The Supreme Court of New Jersey decided that there would be no criminal liability visited upon the guardian of the patient on the basis of the right to privacy:
"These conclusions rest upon definitional and constitutional bases. The termination of treatment pursuant to the right of privacy is, within the limitations of this case ipso facto lawful. Thus, a death resulting from such an act would not come within the scope of the homicide statutes proscribing only the unlawful killing of another. There is a real and, in this case, determinative distinction between the unlawful taking of the life of another and the ending of artificial life-support systems as a matter of self-determination".2
The court also indicated that the decision-making process concerning the termination of a patient's life, in circumstances where the patient finds him / herself in a persistent vegetative state, is grounded exclusively within the realm of constitutional rights. The reasoning of the court was that, under these circumstances, the decision is protected from criminal prosecution.3
The Durban High Court in the Clarke decision did not ultimately endorse the decision of the Supreme Court of New Jersey. The Durban High Court instead favoured an approach based on the premise that, "[t]he issues in the present application can only be approached after a thorough evaluation of the patient's physical and neurological deficits and the extent of the biological and intellectual life which still remains to him".4
The South African courts therefore chose to turn away from the effects of constitutional decision-making and relied on the particular aspects of the patient's life and decision-making.
Ironically such an approach ultimately places the emphasis on self-determination – an attribute that is found and endorsed expressly within the Constitution of the Republic of South Africa, 1996 (the Constitution) – in section 10 in respect of dignity,5 in section 11 concerning the right to life6 and in section 12 in the right to freedom and security of the person.7
The court in the Clarke judgment analysed the patient's interests, rights and expressions of belief concerning his life should he become incapacitated and unable to make decisions for himself when contrasted with the quality of the patient's life in a vegetative state.
Therefore, the Court in the Clarke decision endeavoured to place itself in the mind, as it were, of the patient, i.e. that patient's view of self-determination determines what is best for the patient in the circumstances in which the patient found himself. The court came to the conclusion, based both on an examination of expert evidence presented at the hearing and the self determination test determined specifically by it for the patient, that:
" The maintenance of life in the form of certain biological functions such as the heartbeat, respiration, digestion and blood circulation but unaccompanied by any cortical and cerebral functioning of the brain, cannot be equated with living in the human or animal context".8
The court in the Clarke decision does, with the greatest of respect, lose its way in relation to the application of the self-determination test to which it refers earlier in its judgment. The court proceeds to place a greater degree of emphasis on the matter of causation looking carefully at whether or not the activities of a person turning off life sustaining machinery amounts to the direct cause of the death of the person relying on the existence of the working of such machinery.
The court ultimately concludes that it would not be wrongful for the machinery sustaining the patient to be turned off in so far as the removal of the life sustaining machinery would not be the direct cause of the patient's death.9
The Clarke judgment presents an interesting decision-making matrix within which decisions concerning a person's body, not just the termination of life, may be made. The Clarke judgment certainly breathes life into the notion of self-determination, which is echoed in the Bill of Rights in the Constitution.
Accordingly, there appears to be fertile ground upon which South Africans may be entitled to make decisions concerning the course of action to be followed by them in relation to the use of their bodies for circumstances other than sustaining life.
This argument is certainly controversial and would be based primarily on the extrapolation of the rights found in section 12(2)(b) of the right to freedom and security of the person in the Constitution.
The right to self-determination in relation to control over one's body
An analysis of the rights to bodily integrity, life and security of the person would be required to understand the scope and ambit of this right in South African law.
Based on the interests that are at stake in relation to a person's ability to make decisions concerning his or her own body, it would appear that South African law does recognise these decisions in the context of euthanasia at common law, and the termination of pregnancy in terms of statute.10
However, both of these areas have been controversially developed over decades of jurisprudence. Consequently, the translation of the right and its development in a constitutional dispensation must be nurtured within the framework of the Bill of Rights and subject to the limitations applicable to rights set out in the Bill of Rights.
The right to make decisions about one's body, in the context of the debate about abortion was forged into statutes controlling the decision-making process that a person must follow in order to terminate a pregnancy.11
Therefore, it may very well be that the argument concerning the sale of organs in South African law may turn on the ability of South African constitutional jurisprudence to knit together successfully the rights to bodily integrity and the right to life and possibly property.12
Euthanasia, as a concept in law, is already dealt with within the context of the constitutional rights to life and dignity.13 However, the concept of the right to life has traditionally been treated as a decision concerning the right to live and the right to choose to die, and not what one is able to do with one's body in the context of selling one's organs.14
The issue of the sale of human organs is one that traditionally offends against the sensibilities of society. There is a great deal of resistance to the commodification of the human body and much concern about the consequences of such a commodification – evident in the degree to which the illicit sale of human organs now takes place globally.
Accordingly, the movement of organs in South African society, which is no different to other common law jurisdictions, occurs on the basis of donations which are strictly controlled by statutory laws. The statutes dealing with organ donations in South African law are the Human Tissue Act No. 65 of 1983 and the National Health Act No. 61 of 2003.
Recently, draft regulations have been proposed by the South African Department of Health concerning the general control of human bodies, tissue, blood, blood products and gametes.15 The regulations that are proposed to deal with issues concerning the donation of human tissue, blood, blood products and gametes are also available in draft for public comment16 but the applicable law remains the Human Tissue Act.
Under South African law in the form of the National Health Act, it is proposed that donations of organs by living persons may occur only in prescribed circumstances where the person is older than eighteen years and only for particular purposes identified in the National Health Act.
Section 60 of this act, deals expressly with payments in connection with the importation, acquisition and supply of tissue, blood, blood products or gametes. The fundamental principle in section 60 is that payment may be made for tissue, blood, blood products or gametes but only by persons identified in section 60.17
However, section 60(1)(b) does contemplate a person, other than an authorised institution, in so far as the seller is a person who falls within the provisions of section 55(a) and sells the tissue concerned to another person.
Thus this section does allow a living person to remove tissue, blood, blood products or gametes and provide the removed tissue to a living person for the purposes contemplated in section 56(1). The transaction must be based on "a written consent of the person from whom the tissue, blood, blood products or gametes are removed" which is consistent with the prescribed manner for providing such consent.
Unfortunately, the prescribed manner for the consent has not, as yet, found its way into South African law. Uncertainty therefore exists as to whether or not the expressed provisions of or language used in section 55(a) read together with the language used in sections 56(1) and 63 of the National Health Act would permit circumstances - although limited - in which a tissue, which would include an organ, may be sold rather than donated by one living person to another - bearing in mind that the donation of human tissue is dealt with expressly and distinctly in section 62 of the National Health Act.
What remains evident from the provisions of both the Human Tissue Act and the National Health Act is the existence of a market in which the sale of organs is already permitted.
Constitutional basis for the organ marketplace
The issue is not so much the use of organs, blood products and gametes bearing in mind that as a society we are now comfortable with the donation of spermicide or ovum, artificial fertilisation and similar techniques pertaining to the creation of human life.
The point is that as a society we would need to become comfortable with the ability to sell organs that people either have available within them or that they choose to grow as a result of advances in medical technology.
The question is whether or not, as a result of the election that one makes to a grow an organ outside of one's body based on material taken from one's body, one may then exercise over that external organ, the rights of a property owner and sell that organ to a person who is prepared to pay for it?
The issue of property rights over one's tissue or organs, for that matter, remains controversial in law:
" Matters are further complicated by the opaqueness of the law as to the actual status of body parts in property terms. Thus, while there is evidence in the case law that would suggest that regenerative body material such as hair, blood and urine can be the subject of property, the United Kingdom courts and legislature have been, on the whole, reluctant to address this issue directly. The Human Organ Transplants Act 1989 says nothing about property and organs as such and merely criminalises those who would attempt to trade in the material. Similarly, in controlling the use and storage of gametes, the Human Fertilisation and Embriology Act 1990 remise on the express written wishes of the donor of gametes that falls far short of acknowledging a property right in any sample. That should be compared with the Court of Appeal of California's decision in Hecht v Kane, in which the Court held that a deceased man who had previously deposited sperm for the use of his partner had an interest 'in the nature of the ownership' of the samples so as to render them 'property' within the meaning of the Probate Code and, accordingly, disposable property on his death. This decision should be contrasted with the French case of Parpalaix v CECOS, in which the Court ordered the return of frozen sperm to the wife of the depositor on the basis of an agreement which had been made between him and the sperm bank. It refused, however, to go as far as to recognise any property interest in the sperm."18
The answer to the creation of a marketplace for the sale of organs may turn on establishing certain precepts that are (1) loaned from existing socio-legal structures and (2) the acceptance of novel socio-legal concepts introduced by constitutional jurisprudence:
- an acceptable precedent of a well-functioning and established marketplace, which is presented by the existing, albeit controlled, organ sales market for authorised institutions in the medical research sector – presented by current legislation, such as the Human Tissues Act, and proposed legislation, in the form of the National Health Act;
- a constitutional right to self-determination based on existing endowed rights to life, dignity and property that incorporates acceptance of control over bodily organs vesting in the individual;
- a competent and trusted system controlling the sale so as to reduce prejudice to the seller and to protect the purchaser, the controls for which would be dictated by medical competence, a trusted clinical environment and established contractual terms including informed consent;
- measures to enforce matters of non-compliance with statutory or other principles attendant upon the conclusion of an organ sale agreement; and
- a proper understanding, through a thorough exposition of the advantages (and disadvantages) presented by the availability of organs to a particular society based on need and the reduction of prejudice currently visited on those in need of organs and those selling organs but who are not able to access such treatments or information, respectively, due to waiting lists and other barriers to access.19
In so far as the transaction is legitimate and one is able to grow one's organ in circumstances that are secure, legal and clinical and the transaction is regulated properly and within the confines of statutory law, and there is thus no prejudice visited upon any party as a result of the sale, then the organ sale marketplace is arguably acceptable:
" It should be stressed that the line of argument developed makes no reference whatsoever to libertarian principles about individual rights and unfettered markets, and comes nowhere near implying that commercial pressures should be allowed to take their course. Its starting point is only a modest presumption in favour of letting competent adults decide what risks to take for themselves, strengthened, in the case of kidney selling, by the intrinsic desirability of saving life and mitigating poverty. For anyone who wants to reject these starting points, the rest of the argument will be irrelevant, but these are principles that most people, including most opponents of payment in these cases, would usually accept".20
The calamitous consequences for victims of illicit trading in human organs may very well be quashed as a result of the deregulation or proper regulation of the sale of human organs. This position has as its corollary that proper regulation of the sale of human organs may be appropriate when there is a demand for human organs.
The sale of human organs may be endorsed in very much the same way as the law is already controlling the donation of human organs21 as well as the proposed control in South Africa of:
- the use of stem cells,
- the transfusion of blood, blood products,22
- the regulation of tissue banks,23
- the importation and exportation of cultured cells, stem cells, embryos, zygotes and gametes,24
- the regulation of stem cell institutions and organisations25
and regulations generally relating to the use of human biological material26 including in-vitro fertilisation, the manipulation of human DNA, and the artificial fertilisation of persons.27
Implied in these proposed regulations is the law's respect for the ability of a person to make decisions about the destination of certain of his or her own biological material. In addition, the proposed regulations impliedly adhere to and respect the precepts contained in the Bill of Rights: the principle of self-determination is relied upon squarely to justify steps by the legislature to allow for the enactment of such proposed regulations.
Conclusion
The South African Bill of Rights arguably allows one to exercise a greater degree of control over one's body than under the common law.
This allows for an application of constitutional law that upholds one's decision-making over the destiny of the products of one's body in relation to the growth of organs derived from material generated by one's own body and willingly and voluntarily provided to a third party for that very purpose subject to an agreed price.
Footnotes
* This is an extract of a paper presented at the International Bar Association Annual Conference which was held from 31 October to 4 November 2011 in Dubai
1 70 NJ 10; 335 A 2d 647 (NJ 1976)
2 See the Clarke decision at 639
3 See the Clarke decision in the quotation on page 639
4 See the Clarke decision on page 640
5 "Everyone has inherent dignity and the right to have their dignity respected and protected."
6 "Everyone has the right to life."
7 "Everyone has the right to freedom and security of the person..."
8 See the Clarke judgment at page 658
9 See pages 659 to 660 of the Clarke judgment
10 The Choice on Termination of Pregnancy Act No. 92 of 1996
11 The Choice on Termination of Pregnancy Act No. 92 of 1996
12 See J A Bovenberg Property Rights in Blood, Genes and Data: Naturally Yours? (2006) at pages 196 to 202
13 S v Nkwanyana 2003 (1) SA 303 (W), S v Hartmann [1975] 3 All SA 87 (C), R v Adam [1955] 2 All SA 6 (T)
14 See Cheadle et al, quoted above, at pages 6-17 to 6-20
15 As GNR268, published in Government Gazette 34159 on 1 April 2011
16 Ibid
17 Tissue is defined in section 1 of the National Health Act as: "human tissue, and includes flesh, bone, a gland, an organ, skin, bone marrow or body fluid, but excludes blood or gamete".
17 See J K Mason, R A McCall Smith and J T Laurie Law and Medical Ethics 5th ed (1999) at pages 486 to 487
19 Jackson, quoted above, at page 728
20 J R Richards "Selling organs, gametes, and surrogacy services" in R Rhodes, L P Francis and A Silvers (eds) The Blackwell Guide to Medical Ethics 1st ed (2007) at pages 254 to 267
21 GNR 268 published in Government Gazette 34159 dated 1 April 2011
22 GNR 269 published in Government Gazette 34159 dated 1 April 2011
23 GNR 267 published in Government Gazette 34159 dated 1 April 2011
24 GNR 266 published in Government Gazette 34159 dated 1 April 2011
25 GNR 265 published in Government Gazette 34159 dated 1 April 2011
26 GNR 263 published in Government Gazette 34159 dated 1 April 2011
27 GNR 262 published in Government Gazette 34159 dated 1 April 2011
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