As we evaluate and analyze the case of Senator Ike Ekweremadu, there are certain key factors to bear in mind. These factors are:
(1) What are the legal requirements for successful organ donation, organ procurement and transplant in the United Kingdom? There should be a long of list of things that a person trying to obtain human organ for transplantation into another human being must have to comply with. These requirements will include:
(a) Medical: the medical processes for identifying the need for an organ transplant, identifying the right donor, verifying the suitability of the organs, confirming the medical needs of both the donor and the recipient, and the required standards of medical profession for the process.
(b) Transactional: There must be evidence of consent and free will on the part of the parties, particularly the donor. The law requires that the donor must act based on full and complete information about what he is about to undertake. He must act without undue influence, he must act for the right motive which must not be commercial in nature. He must be capable of understanding all this and freely consenting to the deal. (It is in respect to consent and free will that the age of the donor becomes important. If the donor is a minor, it means automatically that there is no consent. But the fact that the donor is an adult does not mean automatic consent). The law will want to make sure that the adult donor actually freely consented. So, even if the donor in this case is a 21-year old adult (instead of 15-year old minor), that does not necessarily mean that he consented.
(2) Legal and Policy consideration: What is the state of the law regarding a failure to comply with these requirements? What is the attitude of the officials involved in the decision making at every stage in the process? As can be seen in this case, some medical professionals involved in the process were not comfortable with the arrangement. They decided that the organs did not match. They probably spoke to the investigating police officers and their opinions must have been taken seriously by the police in determining that a crime occurred. Also, the attitude of the prosecutors, who felt they must indict. And finally the attitude of the Magistrate who considered the evidence and decided to deny bail.
What was the nature of the contract between the donor and the recipient family? What was the contracting process like? Did the donor sit across the table to negotiate with Senator Ekweremadu? Was there any intermediary in selecting the donor or negotiating the contract? What did the parties really agree to? The fact that there was no written agreement between the parties is rather troubling, and if there was any such agreement, it would have come out even before the letter of Ekweremadu to the British Embassy came out. The absence of a written agreement either with an agency intermediary or directly with the donor is something that is not in the interest of Ekweremadu. It lends credence to the theory that the recipient family was totally in control of the young man, leading to the inference of exploitation for the purpose of organ harvesting.
The absence of a written agreement or anything that would show what the parties agreed to meant that there was no arrangement on what would happen if the young man was not able to donate his organ after arriving in the UK. It is not clear what he was promised. But it can be assumed that the young man did not expect that he would be returning to Nigeria anytime soon. However, it is fairly understandable that the Ekweremadus would want the young man back to Nigeria if the organ transaction did not go through. The young man would not have been able to sustain himself in the UK without money from the Ekweremadus. And if the Ekweremadus stopped sponsoring him, he will become broke and live at public charge, which would ultimately force him to seek government/welfare support.
This case has every potential of becoming a big case and the downfall of Senator Ekweremadu. In as much as we all wish that it would go away and all will be resolved quickly and return to normal, it will be naive to fail to appreciate the seriousness of the charges and the legal challenges that the Ekweremadus are facing right now.
Organ transplanting, sorrogate parenthood, adoption, etc are issues that are tightly regulated. The only difference is that in the case of organ donation, any failure to comply with regulation may trigger criminal consequences. And this is a clear case where ignorance of the law will not be an excuse.
It was in the press today that the Government of Ebonyi State had contacted the family of the victim and required a meeting with them. It is not clear the purpose of such meeting. But one thing is clear: the British prosecutors and the court in UK may interpret that as an attempt to intimidate or influence the family of the victim. That alone will help substantiate the victims asylum application – that he would be persecuted if he returns to Nigeria.
Emeka Ugwuonye is a Harvard trained attorney and founder of Due Process Advocates International (DPA)