Biomedical Law and Ethics

• Date: 01 December 2008
• Author: Paul TAN LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore).
• Published date: 01 December 2008

Introduction

5.1 The year 2008 proved especially rich for students of biomedical law and ethics. The courts handed down a series of important judgments applying, for the first time, the provisions prohibiting and punishing the donor, recipient and middlemen involved in the commercial trading of organs. The High Court also articulated helpful guidelines on the ambit of ‘professional misconduct’.

Organ trading

5.2 The ethical complexities of organ trading have been publicly discussed for some time now (see (2006) 7 SAL Ann Rev 93 at 96—98, paras 5.12—5.18) but it was only this year that legislation strictly forbidding organ trading was tested in a trio of cases. This review will focus on just those cases arising out of the same transaction involving the high-profile Mr Tang Wee Sung who was suffering from kidney failure and sought to purchase a kidney through a middleman. There was no dispute by Tang, the middleman or the prospective donor that the transaction was in violation of, inter alia, s 14(1) read with s 14(2) of the Human Organ Transplant Act (Cap 131A, 2005 Rev Ed) (‘HOTA’):

14. —(1) Subject to this section, a contract or arrangement under which a person agrees, for valuable consideration, whether given or to be given to himself or to another person, to the sale or supply of any organ or blood from his body or from the body of another person, whether before or after his death or the death of the other person, as the case may be, shall be void.

(2) A person who enters into a contract or arrangement of the kind referred to in subsection (1) and to which that subsection applies shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both.

5.3 The first to be sentenced was Sulaiman Damanik (‘Sulaiman’) who had agreed to sell his kidney for approximately 150m rupiah (S$23,700). Sulaiman was also convicted with another donor, Toni, who had previously sold his kidney to one Juliana Soh and who was now a low-level liaison assisting in making logistical and transport

arrangements for Sulaiman and Tang. Toni was paid approximately S$3,200. Both pleaded guilty and their sentences are reported in the same decision: PP v Sulaiman Damanik[2008] SGDC 175.

5.4 It was revealed in the statements of facts that Tang had engaged a middleman, Wang Ching Seng (‘Wang’) to procure a living donor. Wang subsequently identified Sulaiman as a potential donor. Sulaiman was approached and, having reached an agreement on the fees, Sulaiman flew into Singapore and was met by Toni. Apart from undergoing medical tests, Sulaiman was also required to attend an interview by the Transplant Ethics Committee (‘TEC’), for which Wang coached Sulaiman. Sulaiman thus provided false information to the TEC. In addition, Sulaiman had also made a false statutory declaration to the effect that he had received no money or financial gain to procure his consent to the transplant.

5.5 It was pleaded in mitigation of Sulaiman”s sentence that the reason for his entering into the transaction was his need for money to support his family. As his family”s sole breadwinner (he was single and living with his parents), he was earning less than S$120 a month as a labourer. That was before he had lost his job in January 2008. When he was approached to sell his kidney for the equivalent of more than 16 years” labour, he saw it as a ‘God send’. According to his counsel, he lacked education and failed to consider that his decision to sell his kidney for a fee was against the laws of Singapore.

5.6 The prosecution argued (at [22]) that the ‘commercial trade in human organs often involved the exploitation of the poor and socially disadvantaged who are unable to make informed choices and suffer potential medical risks’. According to the prosecution, Parliament”s ban on organ trading reflected a ‘clear and unanimous consensus’ that organ trading was ‘morally and ethically wrong’, and that Singapore ‘must not become a hub or a player in organ trading, whether consciously or inadvertently’: at [23].

5.7 On the facts of the case, the court held that both Toni and Sulaiman had ‘knowingly infringed the law, risking life and limb, because of the financial reward that [they] had been promised’: at [33]. However, the court then observed that it was ‘reasonable to infer’ that their poverty had led an organ-trading syndicate to ‘exploit’ them such that it ‘would have been difficult to resist’ the offer.

5.8 Organ transplantation itself is neither illegal nor immoral. From the viewpoint of biomedical ethics, the raison dӐtre often cited for a ban on the commercial trading of organs is, as the court pointed out, the exploitation of the poor that (allegedly) invariably follows from permitting organs to be traded. As the prosecution put it, the poor who

sell their organs ‘are unable to make informed choices’: at [22]. But to justify a ban on that premise produces an awkward, counter-intuitive result: that one has to punish the very person whom, it is claimed, the ban seeks to protect. In order to justify this conclusion, the court has to hold (as it did at [33]) that the organ seller did in fact know what he was consenting to and that he also knew that this was illegal. Yet, if that were so, there would be no need for the ban to protect such sellers.

5.9 Of course, it is possible to make the argument that, for the purposes of criminal law, an intention to commit an illegal act (which is then carried out) is sufficient to warrant punishment; and the requirement of mens rea in criminal law ought to be distinguished from the possibility that that intention to act is unaccompanied by information as to the downstream consequences of one”s action. As a crude example, the law does not require a rapist to understand the physical and psychological harm that his actions would cause to his victims. But this is not an entirely satisfactory resolution to the conundrum because the offence in question consists in the agreement to participate in an arrangement to sell one”s organs. Can it fairly be said that a person who is not in a position to make an informed decision has, by definition, agreed to enter into such an arrangement?

5.10 At this point, a more promising approach might be to recognise that the word ‘exploitation’ might be too loosely used to describe the condition in which organ sellers often find themselves. It clearly cannot be that all organ sellers are inherently incapable of making an informed decision. The Human Organ Transplant Act (Cap 131A, 2005 Rev Ed) would otherwise be an unsympathetic, even self-contradictory, legislative move that punishes the very...