Although selling body organs is illegal in Kenya, this law is poorly implemented.
In Kenya, selling your kidney or any other human organ is strictly prohibited under Part XI of the Health
Act No. 21 of 2017.
This part of the law comprehensively addresses the
regulation of human organs, blood, tissues, and gametes (such as sperm or egg).
The
legislation was established to protect human dignity, prevent exploitation, and
ensure that organ donation is carried out ethically and safely. Importantly,
the Act also sets heavy penalties for any violations.
The Health Act clearly prohibits any form of
commercialisation of human organs and tissues.
It states that a person shall not sell, offer to sell, or receive any financial
or other reward for the donation of a human organ, blood, blood products,
tissue, or gametes.
The only exception is reimbursement for reasonable
costs incurred during the donation process – such as travel and medical expenses – but not the organ itself.
Anyone who sells or attempts to sell their organ,
or buys or attempts to buy one, commits an offence. The law is designed to
prevent vulnerable people from being coerced into selling their organs due to
poverty or desperation, and to stop any form of trafficking in body parts.
The Health Act includes stiff criminal penalties
for violations under this section:
It says anyone who contravenes the provisions on the
prohibition of trading in human organs is liable, upon conviction, to a fine
not exceeding Sh10 million or to imprisonment for
a term not exceeding 10 years, or to both.
If the offender is a healthcare provider or a
facility, they may also have their license revoked or face additional
regulatory penalties, including being disqualified from practice.
Performing a transplant without proper consent or
in unauthorised facilities is also an offence,
and offenders are subject to the same level of penalties.
How legal
organ donation works in Kenya
However,
organ donation is legal and
encouraged under “tightly
regulated and ethical” conditions.
A living person can donate an organ (commonly a
kidney) only if they provide informed and written consent. The donor must be a
close relative or have a close emotional connection to the recipient (such as
spouse), and both parties must undergo
medical and psychological evaluations.
In the case of posthumous donations, a person can
state in their will that their organs may be used after death for therapeutic
or educational purposes. If there is no written will, a relative or legal
representative may give written consent, but again, no payment can be involved.
The body must also be under proper medical care at
the time of death to ensure the organs are viable and safe for transplantation.
The Act also allows a donor to revoke their consent
at any time before the donation takes place, and this revocation must be
respected without question.
All organ transplant procedures must be carried out
in licensed health facilities, and must adhere to the guidelines provided by
the Ministry of Health. There are strict regulations about documentation,
matching, consent, and record-keeping to ensure the process is ethical,
transparent, and safe.