Explainer: Thinking of donating an organ? Here's what the law says

Kenya is slowly emerging as a hotspot for illegal organ trafficking, a documentary by German broadcaster Deutsche Welle (DW) has revealed.

The exposé, released on Monday this week, alleges that organ trading has been happening at Mediheal Hospital in Eldoret. 

Initially, the operations reportedly involved kidney recipients from Somalia and donors from Kenya. However, DW reported that the scope of the alleged racket widened in 2022, drawing recipients from Israel and, as of 2024, from Germany. The donors were also flown in from Azerbaijan, Kazakhstan, and Pakistan.

According to the international outlet, some donors were coerced into signing documents, falsely identifying them as relatives of recipients they had never met. 

In many instances, they consented to kidney removals without fully understanding the health risks involved, and some were allegedly underage at the time of the surgeries.

Legally, such transactions stand on shaky ground.

“By law, so far, it’s a family thing,” said Dr Ben Lomatayo, Consultant Nephrologist at Aga Khan Hospital, in an interview with Spice FM.

Kenya’s Health Act of 2017 permits organ transplants between living, related donors. 

However, there are limited provisions for donations between unrelated individuals, only under stringent medical, ethical, and legal criteria.

The Act also allows posthumous donations for medical, research, or training purposes, but only under specific conditions. 

For instance, if a person dies without leaving a will or without identifiable family, a close relative in a specified order may authorise the donation. 

"In the absence of a donation under subsection (1) (a) or of a contrary direction given by a person whilst alive and upon death the person's body remains unclaimed under any other law, the spouse or spouses, elder child, parent, guardian, eldest brother or sister of that person, in the specific order mentioned, may, after that person's death, donate the body or any specific tissue of that person to an institution or a person contemplated in this subsection," the Act states. 

In cases where no relative can be traced, the Health Cabinet Secretary is permitted to approve a donation, but only after all necessary efforts to locate the family have been exhausted.

The law further states that any organ transplant must take place in a duly authorised facility and under the written approval of a senior medical officer. 

If a donation is made through a will, it must be signed by the donor in the presence of at least two witnesses, and both parties must be present at the time of signing. 

The donor must also nominate a specific institution or recipient; failure to do so renders the donation null and void.

No charges
Importantly, the law prohibits charging any fee for human organs. Violations attract penalties of up to Sh10 million in fines and/or imprisonment for up to 10 years.

"The Cabinet Secretary shall prescribe through regulation the criteria for the approval of organ transplant facilities, and the procedural measures to be applied for such approval. Any person who contravenes the provision of this section or fails to comply therewith or who charges a fee for a human organ commits an offence."

Following the exposé, Health CS Aden Duale announced that the Ministry of Health would conduct audits at Mediheal Hospital and seven other transplant facilities to assess compliance with the law.

Among the ministry's preliminary findings was Mediheal’s failure to verify familial relationships between donors and recipients. Some donors and recipients were of different nationalities, an issue that, under the Health Act, could constitute organ trafficking.

Additionally, the fact that donors were allegedly paid for their organs, something explicitly prohibited by law, further reinforces concerns about illicit activity. 

It also remains unclear whether the required approvals by the Cabinet Secretary were obtained in these cases.

While the law allows a donor to revoke consent before a transplant takes place, the lack of transparency and alleged coercion in these cases suggests a glaring gap in enforcement and a potential human rights crisis hiding behind hospital walls.