We take a closer look at how ante mortem and posthumous organ donation is regulated in Egypt through the lens of the Organ Transplantation Law.
Kanzy RadwanAssociate,Corporate Commercial
After-death organ donation is a standard practice in many parts of the world, including Arab countries like the United Arab Emirates, Bahrain, Saudi Arabia and Morocco. This cannot, however, be said about Egypt, where the subject has sparked controversy for years, despite its legalization in 2010 by virtue of Law No. 5 of 2010 regulating the Transplantation of Human Organs and its Executive Regulations No. 93 of 2011 (the “Executive Regulations”) (together, the “Organ Transplantation Law” ).
In recent times, the question of organ donation has been re-surfacing after Egypt’s health ministry announced that it was studying a new mechanism through which Egyptian citizens may posthumously donate their organs to those in need. President Abdel Fattah El Sisi’s advisor on health, Mohamed Tag El Din, issued a statement confirming that the government was looking into introducing an organ donation option on Egyptian national ID cards, as is the practice in many countries around the world. Indeed the implementation of the Organ Transplantation Law has been difficult considering the cultural and psychological barriers in many Egyptian citizens’ minds that make posthumous organ donation seem like a violation of the sanctity of the deceased. That being said, a shift towards a more liberal approach is being pushed by the Egyptian government to raise awareness on the subject and encourage its acceptance when the recipient is in medical need.
With the foregoing in mind, we take a closer look at how ante mortem and posthumous organ donation is regulated in Egypt through the lens of the Organ Transplantation Law.
Ante mortem organ donationsThe Organ Transplantation Law permits the transfer of organs, or part of an organ or tissue, from a living human being to another human being only to the extent necessary to preserve the life of the recipient or treating the latter from a serious disease, and provided that such transfer is the only means to meet this necessity. The law strictly prohibits any such transfer if the life or health of the donor would be seriously endangered as a result of such transplantation or if it would result in mixing lineages.
The Organ Transplantation Law restricts the eligibility of organ donors and recipients under Egyptian law, and states that organ transfers should strictly occur between Egyptian nationals who are also relatives. That being said, transfers are exceptionally permitted between two non-relatives when the recipient is in urgent need of a transplant, in which case the prior approval of a special committee formed by the Minister of Health would be required.
The nationality condition may also be overturned in specific cases defined in the law, which permits, for example transfers between Egyptian and foreigner spouses provided that at least three years have passed since their marriage, as evidenced by a notarized marriage contract. Organ donations between two foreigners of the same nationality may also be permitted in Egypt provided that their country of origin does not prohibit that such organ transfer takes place in Egypt.
The Executive Regulations have set out a set of admissibility criteria for donors who wish to donate organs to a relative
The Executive Regulations have set out a set of admissibility criteria for donors who wish to donate organs to a relative, which include, among others: being below fifty years old; being fully qualified; and showing compatibility with the recipient in relation to the tissue and blood type. In all cases, the donation must be: of free will; not tainted by error, fraud or coercion; and established by a written acknowledgment from the donor supported by the testimony of two first-degree relatives or certified by the notary. The Organ Transplantation Law further emphasises that the transplantation should take place in a medical facility licensed for the same and, most importantly, no material or in-kind consideration should ever be granted to the donor in return for their donation. Fines of up to two million Egyptian Pounds and/or life imprisonment may be faced by those who breach the provisions of the Organ Transplantation Law, as applicable in each case.
Article 8 of the Organ Transplantation Law permits the transplant of an organ, or part thereof, from a dead person’s body to a living person to the extent necessary to treat them from a serious disease, or to compensate for a vital deficiency in their body, provided that they are both Egyptian nationals and that the deceased has evidenced in a documented will or an official paper their wish to donate their organs prior to their death. Such a document must be attested by the Supreme Committee for Human Organ Transplantation (the “Supreme Committee”).
In line with the foregoing, Article 14 prohibits any transfer of organs, or part thereof, or tissue from a dead body except after death has been established with certainty ─ as evidenced by a decision issued unanimously by a tripartite committee of doctors chosen by the Supreme Committee who are specializing in neurosurgery, heart and blood vessel surgery, and anaesthesia or intensive care, ─ and after the Supreme Committee conducts the necessary clinical and confirmatory tests to verify the evidence of death, in accordance with the medical standards determined by the Supreme Committee and issued by a decision of the Minister of Health. The tripartite committee referred to above must announce its decision in a timely manner to the family and relatives of the deceased, upon which a relative of the first degree may object to the donor’s decision to donate their organs post death; the objection must be recorded in a report issued by the medical facility, and the Supreme Committee’s response to the objection must be included. The Supreme Committee - in order to perform its mission - may seek the assistance of experienced and specialized physicians at its own discretion.
In November of this year, the Supreme Committee approved a will template to be completed by organ donors prior to their death, which would allow posthumous donation of their organs. The form was drafted in line with the Organ Transplantation Law and is planned to be made available in special offices of the Supreme Committee inside hospitals and health units. When completed and signed by the individual wishing to donate their organs posthumously, the donor will receive a donation card issued by the Ministry of Health showing the individual’s national ID number and stating that they are an organ donor (“Donation Card”).
The reasoning behind introducing a donation card would be the need to facilitate a simple process for those wishing to donate their organs after their death and to raise more awareness on the subject matter, not to convince people to adopt posthumous organ donation. Indeed the Donation Card will revolutionize the perception of organ donation in Egypt and replace the long, arbitrary process detailed in the Organ Transplantation Law and consisting of registering the organ donor’s will at the notary. That being said, and in line with the provision of Article 14 above, a member of the Supreme Committee has reiterated that the Donation Card would not prevent the donor’s family from objecting to the donation of his/her organs after his/her death, and the Supreme Committee would not oppose such objection given that the latter’s role is only to facilitate the process and not cause disagreements after the death of the donor.
The contemplated implementation of the new organ donation system echoes the Ministry of Health’s agenda to invest in 2023 65 billion Egyptian pounds (about USD 3.3 billion) from the national budget into various medical developments, with the state intending to collaborate intensively with the private sector to develop and improve medical facilities in Egypt.
For further information, please contact healthcare@tamimi.com.
Published in January 2023
