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‘Orphaned’ Transplantable Organs: Law, Ethics, and Ownership
Remigius N Nwabueze

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Abstract

The legal status of an organ, in the period between its extraction from the body of a donor and its implantation in the body of a recipient, is unclear. In that period, the excised organ might be said to be orphaned because of its ambiguous custodial and proprietary status, and a host of activities might take place which could jeopardise its safety or viability for transplantation. For instance, what happens if the organ was lost or damaged in transit? Not inconceivably, a thief might snatch the organ from the possession of the transplant team; a transplant surgeon could use the organ for the treatment of their relative or close friend, a celebrity, or an influential political figure, instead of transplanting the organ into the properly selected and designated recipient contrary to the established allocation criteria. The excised organ might be damaged maliciously by a third party, say, an enemy of the proposed recipient who was bent on frustrating the recipient’s only means of receiving a life-saving treatment. Further, a live donor might change their mind on donation to the potential recipient after the organ has already been extracted.

While these scenarios raise an interesting mix of legal, ethical, political and social questions, a fundamental enquiry that permeates the whole gamut of issues engendered by the hypothetical above is the question of ownership and proprietary entitlement to an excised (orphaned) organ. Accordingly, this article interrogates the question of proprietary control or ownership of an orphaned organ.