5 - 11 April 2001
Issue No.528
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Al-Ahram Weekly On-line 5 - 11 April 2001 Issue No.528 |
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Between life and death
Does a new draft law regulating organ transplant have half a chance? Shaden Shehab searches for hope in the heated debate that throws together science and theology
Thousands of Egyptians are in need of organ transplants, but only a few can afford to undertake operations abroad. The less fortunate are left to suffer, waiting for an almost certain death. To some people however, this fact does not provide sufficient impetus for life-saving legislation.
The only legislation regulating organ transplants is the 1962 law legalising cornea transplants. Kidney transplants are regulated by the Doctors Syndicate, depending on the wishes of donors and recipients. The donor must be a first, second, or, in very serious cases, a third or fourth-degree relation to the patient. The donor must provide a written consent stating that the donation is not for money. Doctors must prove that the kidney transplant will cause neither the donor nor the patient any harm.
The cornea can only be legally transplanted after the donor's death if the latter gives a written or verbal consent. The donor's heirs are prohibited from taking any money in return.
Opponents to the legislation on organ transplants believe that such a law would violate the tenants of religion or promote organ trade. It was this opposition that caused four previous draft laws to founder over the past five years. The previous drafts were prepared by the Ministry of Health, Mansoura University professors, and two members of parliament.
But the battle is not lost. The Ministry of Health has once again prepared a draft law regulating organ transplants. This draft law has won the approval of Al-Azhar and the Mufti, the two highest Muslim religious authorities. This endorsement should give the draft a push in parliament.
But the new draft, of which Al-Ahram Weekly had obtained a copy, is not so much different from previous drafts, except that it tries to find a way out of the controversy over the definition of death. Organs can only be taken from clinically, or brain-dead patients with beating hearts. The main issue of the controversy is whether to consider those patients dead or alive.
Most doctors say clinically dead persons will never recover and can only live with artificial respiration. On the other side of the coin, religious scholars consider a person dead when all his body organs, including the heart, stop functioning.
Once the heart has stopped, only the donor's skin, cornea and heart valve can be used for transplant. Skin transplants could be done up to 24 hours after death, cornea after six hours and heart valves after 12.
In an attempt to avoid controversy, the ministry's new draft does not define death and leaves it to the doctors to decide when a person is dead. The draft law forbids organ transplants before the verification of the donor's death and before making absolutely sure that his soul has departed beyond any doubt. Death will be ascertained by a three-member committee of specialised doctors formed with the consent of the minister of health. If the committee approves the transplant operation, then it should submit a report stating the reasons. Copies of the report should be made available to relatives, and the hospital or centre where the operation takes place.
Hamdi El-Sayed, chairman of the Doctors Syndicate and head of parliament's health committee told the Weekly that the draft law handles the matter "wisely". "This is a scientific debate, not a religious one; it should stay that way."
El-Sayed explained that, "the determination of death is entirely the job of doctors." Moreover, "clinically dead persons can never recover or live without artificial respiration. If this was not true, organ transplants would never have been allowed in advanced countries where human life is so precious," he said.
The Grand Imam of Al-Azhar Mohamed Sayed Tantawi and Grand Mufti Nasr Farid Wassel had said that death occurs when all body functions stop. But they expressed the reservation that doctors are the ones to decide whether clinical death conforms to the religious definition. Both religious scholars cautioned, however, if there is even a "slight chance" that the patient could recover, he or she should be given that chance. Otherwise the removal of an organ would be considered "murder."
Tantawi had repeatedly announced his willingness to donate his organs after his death. Both scholars also said that an organ transplant is permissible in Islam if it is not done for material gain.
The draft law permits organ transplants from dead persons with the donor's written consent or the approval of a first relative, or the general prosecutor if the donor is unknown.
Some people oppose any legislation regulating organ transplants as a matter of principle. They argue that it will promote organ trade. Illegal trade in kidneys and corneas had made a few headlines over the years.
Wagih Abu Zikri, a prominent journalist at the daily Al-Akhbar has argued that a law permitting organ transplants would leave healthy patients at risk of death. "Patients undergoing ordinary operations could have their lives threatened by greedy doctors who might wish to take their organs out and sell them," he wrote.
But El-Sayed counters that "legislation regulating transplants will put a stop to the illegal organ trade. The new law could regulate the matter, especially that it stipulates harsh penalties for violators."
Under the new draft, it is not permitted to take organs from a living person to another for commercial purposes. Transplant operations can only be done if they are absolutely necessary and provided they do not cause death or endanger the donor's life. The specialist doctor should carry out the necessary tests and the three-member committee should approve his report.
The draft specifies that the donor must be a first- or second-degree relation of the patient. In very urgent cases, donors may be third- or fourth-degree relations. It says that the donor must be an adult and must volunteer freely. He will be entitled to change his mind at any time before the operation.
The draft stipulates that organ transplants be done only in hospitals and medical centres that are licensed to do so by the minister of health.
Organ donations from Egyptians to non-Egyptians are allowed only with the consent of Ministry of Health, according to the draft. In this case the donor must be a first or second relative.
Violators of the law will face harsh penalties. The draft stipulates imprisonment for up to10 years and a fine ranging between LE10,000 and LE50,000 for those who take out an organ from a living person with the purpose of giving to another.
If the patient dies during the operation, the penalty would rise to 15 years imprisonment with hard labour and a fine ranging between LE50,000 and LE100,000.
Removal of organs from a dead person without the appropriate consent would be punishable by up to five years imprisonment and a fine ranging between LE5,000 thousand and LE20,000 thousand.
The head of the hospital or whoever authorised a transplant will be answerable in the event an organ is stolen. He would face imprisonment for an unspecified term and a fine ranging between LE5,000 and LE20,000 thousand. In addition the bill provides for the prohibition of practice for up to three years for offending doctors.
Even with these tough regulations written into the bill, it would be optimistic to assume that the legislation will reach parliament any time soon, and even if it did so, it would be sure to face fierce opposition. "We are forming several sub-committees to study the draft law," Mohamed Moussa, head of parliament's legislative committee, told the Weekly. "But it seems unlikely that the draft law will reach parliament before it ends its [current] session." Parliament recesses from June to November.
El-Sayed was even more pessimistic, saying that the draft law will not reach parliament in the near future, "because the government is not eager to anger the public over such a delicate matter right now." And while the minister of health was not available for comment, a source close to the ministry told the Weekly that a cabinet reshuffle is expected "and the minister does not want to be on the defensive at such a time."
Pointing out that the main controversy over the definition of death remains unresolved in the bill, Moussa says it is unlikely that the bill will pass. He added that "with a large number of Muslim Brotherhood members in parliament, the chances of the law passing are slim." But it does not take Islamist-oriented MPs only to stir up the controversy. Last year the parliament's speaker, Fathi Sorour, vowed he would adamantly stand against legislation that allowed organ transplants from clinically dead patients. Claiming that previous draft laws went against everything, from religion to the constitution, Sorour said he would be "the first one to fight any draft law for organ transplants between living persons. If such a draft law is submitted to parliament, I will fight it with all my might."
Despite the heated debate over the issue, many Arab and Islamic countries, such as Saudi Arabia and Kuwait, have passed legislation regulating organ transplants.
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