Organ trading is illegal
In 2008, prominent businessman Tang Wee Sung, then owner of the CK Tang departmental store was jailed for a day and fined $17,000 for trying to purchase a kidney. Organ trading is illegal in Singapore and banned by the Human Organ Transplant Act (HOTA). Despite various amendments to the law, organ donation remains low and the average wait for a kidney transplant can take up to 10 years. The demand for organ transplants in Singapore far outweighs its supply. In 2015, over 400 people are on the waitlist to receive an organ donation while trying their best to fight to live. There were only 58 organ transplants of the kidney, heart and liver compared to 69 in 2006 – Is it finally time to reconsider the ban on organ trading?
Under the Singapore law, the legalities of organ transplants are overseen by two laws: The Human Organ Transplant Act (HOTA) and the Medical (Therapy, Education, and Research) Act (MTERA). The HOTA was enacted in 1987 and allows the authorities to remove any organ from a deceased Singapore citizen or Permanent Resident who has died in a hospital, for the purpose of the transplanting the organ to the body of a living person. The HOTA is also the Act which criminalise organ trading. Two amendments have been since made to cater to the growing demand for organ donation.
The HOTA criminalises organ trading covering four aspects.
- Agreeing to sell or supply for yours (or anybody else’s) organ or blood to others for economic/financial/beneficial gain
Under Part IV, Section 14(1) of HOTA, the law states that any contract or arrangement which a person agrees, for valuable consideration (i.e. economic, financial or beneficial gain) that may be given to themselves or others, to the sale or supply of any organ or blood from their body, or that of another person is considered void.
In the first situation, if you are caught agreeing to, and entering into a contract or arrangement to sell or supply your organs and blood (or anybody else’s), both the buyer and seller will be liable to a fine of up to S$10,000 or jail for a maximum of 12 months, or both.
It is important to note however, under Section 14 (3)(c) of the HOTA, there may be reimbursement for expenses that the donors might occur as a result of them becoming donors. These expenses include medical procedures, childcare, loss of earnings, to name a few.
- Being in the business of facilitating, procuring and selling organs or blood to other people;
This aspect is covered in Section 14(2A) – which covers a range of possible elements involved in the business of organ trafficking – specifically it is meant to penalise and deter the buyers, the middlemen, the traffickers, and people who decided to sell their organs and blood for financial/economic/beneficial gain.
Based on how the law is currently structured, the following hypothetical scenarios would be completely illegal:
- If you are a healthy, young male. Another person approaches you with an offer of money, so long as you, or someone you knew, would be willing to sell or supply their kidney. You agree, and you accept the money.
- In this case, both you and the other person could be charged for an offence contrary to Subsection 2A (a) and (b).
- If you are a person who has been diagnosed with kidney failure. One day, while on the way home, someone approaches you and claims that for money, he/she can procure a healthy donor kidney for you, and you won’t have to be on the waiting list to receive an organ transplant.
- In this case, the person offering to sell the organ can be charged for an offence contrary to Subsection 2A(c).
- If you are a person who has been diagnosed with kidney failure. One day, while on the way home, a person approaches you and identifies himself as a representative of a company that can procure a healthy donor kidney for you in exchange for a fee, and you won’t have to be on the waiting list to receive an organ transplant.
- The person identifying himself as a company representative could be charged for an offence contrary to Subsection 2A(d), while the management of that company could also be charged for an offence contrary to Subsection 2A(e).
Anybody who is guilty of any of these clauses in Subsection 2A would be liable on conviction to a fine not exceeding S$100,000 or to imprisonment for a term not exceeding 10 years, or both.
- Advertising the sale/purchase of blood and organs, or advertising the right to take any organ or blood from the body of another person
Under Section 15, Part IV of HOTA, it is illegal to issue, or cause to be issued, any advertisement related to the buying or selling in Singapore of any organ or blood, or of the right to take any organ or blood from the body of a person.
Anybody who is guilty of this would be liable to a fine of up to S$10,000 or jail for a maximum of 12 months, or both.
- Acting as a vendor or supplier for derivatives of processed organs or blood that is obtained through illicit trade
If you are a vendor or supplier for the sale or supply of products derived from treated and processed blood and organs, and if it is found that the blood and organs were obtained through a contract or arrangement with a person who would receive economic/financial/beneficial gain, then you would be liable on conviction to a fine not exceeding S$10,000 maximum or to imprisonment for a term not exceeding 12 months maximum or to both.
Doctors however, feel that donors and patients should not be persecuted if they had bought organs from abroad. The wait to obtain organs for transplant is long, and for patients, this race against time is one that they cannot afford to leave to chance.
Is it time to lift the ban on organ trading?
Even with these hefty fines and heavy punishment, people will still be taking the risks to save their loved ones. The lack of availability of organs in Singapore has not seen any improvement over the past ten years. This proves that the current model for organ donation in Singapore is not adequate.
Expectedly, there are different opinions for this issue. Most feel that there should not be a monetary value pegged because it encourages exploitation of the vulnerable and poor. However, inadequate supply will always be a problem for Singapore if no steps are taken. There are strong disagreements on both sides of the fence and legislation needs to be reconsidered to better the supply of organs in Singapore. Lifting the ban or decriminalising organ trading is unlikely to happen soon but more can be done in Singapore to bridge the gap. Public education to change the attitude of the public concerning organ donation is key. More resources can also be put into research efforts in moving Singapore close to produce artificial organs.
However, the law clearly states that if the fee is only to reimburse expenses of the donor then it is permissible. There has not yet been many cases involving organ trading as our society has not reached that stage but this is the reason why it is an offence and there is a need to curb such temptations as the victims could possibly be young people whose family members begin trading their organs in exchange for payment and that will evolve into a multi-million dollar business where many less affluent members of our society would succumb to temptation of selling organs in dire straits.
Have a question or need legal advice?
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This article is written by Pratap Kishan from Ho Wong Law Practice and edited by Elizabeth Tan from Asia Law Network.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.