Sunday, 18 November 2007


This morning the Sunday Times reports that in the Netherlands a proposal is being considered to pay – or, more accurately, to bribe – citizens to encourage them to donate one of their kidneys for transplantation. The plan, being considered by the Dutch health minister, is to ‘reward’ donors by giving them free-for-life health insurance – calculated by the Dutch Health Council to be worth around €50,000 – say £35,000.

The background to this proposal is that there is in the Netherlands, as in the UK, a chronic shortage of healthy kidneys for transplantation, partly because advances in medical science mean that there are fewer cadaver-derived kidneys from – for example – road accident victims. Meanwhile, patients suffering from kidney failure are dying while on dialysis.

Currently, in the Netherlands as in Britain, the sale (as opposed to the simple donation) of organs is illegal. The British legislation was rushed through parliament in 1989 without any public debate (there was, it is true, a hysterical media campaign, but that is not quite the same thing, is it?) by a Tory government that had no mandate for such an enactment but which knew it could rely on the unthinking support of the Socialist opposition. On the Socialist side the argument was suddenly heard that unless the sale of organs was criminalised the poor might be exploited. And on the Tory side Mrs Thatcher declared that the sale of organs was “utterly repugnant.” So that was that.

But – of course – the sale of organs, and specifically of kidneys, has not ceased. The ‘trade’ has simply moved to India and elsewhere.

Meanwhile, last May, we had the bleak privilege of witnessing the first conviction in this country of someone who wished to sell a kidney. Mr Daniel Tuck was convicted of contravening the Human Tissue Act by offering to sell one of his kidneys to a reporter apparently working for a Birmingham newspaper. Mr Tuck (a young man who had gambling debts) subsequently hanged himself. What possible good did his prosecution serve? All those involved in the prosecution of Mr Tuck need to reflect on the fact that a kidney sufferer may have been denied the right to treatment, and that the ill-considered prosecution of Mr Tuck may have contributed to his tragic death. These are not things I would wish to have on my conscience.

Since appearing as an expert witness before the Professional Conduct Committee of the General Medical Council in 1990 I have written on this subject several times – notably in the journal (Verdict) of the Oxford University Law Society (1996) and in the Guardian earlier this year.[1] But I have to say that there appears to be a determined reluctance amongst politicians to have a serious debate on the subject. When I asked my own MP to sponsor such a debate in the House of Commons, he told me that he was not prepared to do this because he had “a list of other things I think are of higher priority.”

But what could be a higher priority than the saving of lives?

If I wish to sell one of my kidneys I should be free to do so. As for the poor, none of us has any moral right to prevent them selling something that is theirs. If there is felt to be a risk of exploitation, then regulation, not prohibition, is the answer.

I very much welcome the Dutch initiative, therefore. Let’s hope that it will stimulate a calm, rational, ‘grown up’ discussion in this country with a view to decriminalising the sale of organs for transplant, and establishing a regulated market for such life-saving procedures.


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