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Posthumous Organ Retention and Use in Ghana: Regulating Individual, Familial and Societal Interests

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Abstract

The question of whether individuals retain interests or can be harmed after death is highly contentious, particularly within the context of deceased organ retrieval, retention and use. This paper argues that posthumous interests and/or harms can and do exist in the Konkomba (and wider Ghanaian) traditional setting through the concept of ancestorship, a reputational concept of immense cultural and existential significance in this setting. I adopt Joel Feinberg’s account of harms as a setback to interests. The paper argues that a socio-culturally sensitive regulatory framework does not necessarily exclude the donation of (deceased) human biomaterials for transplant and science research. Indeed, when customary values are explored with open-mindedness and sensitivity it may be shown that such donation can form part of the important customs of some communities in this jurisdiction. Accordingly, a context-appropriate governance framework could utilise the cultural value of ancestorship as an incentive to encourage organ donation in the Ghanaian traditional setting.

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Notes

  1. The Konkomba are the second largest ethnic group in the Northern Region of Ghana. Their beliefs mirror the beliefs of almost all other ethnic groups in Ghana. As a result, the arguments, inferences and conclusions in this paper have a huge potential for generalisation.

  2. See Sects. 2, 3, 4, 5 and 12 of [1].

  3. See note 2 above.

  4. Specifically Sect. 2 of [9]. For the role of other professionals such as social workers in rendering support services to bereaved families under these circumstances kindly see [13].

  5. See the section 15 (First Schedule) Civil Liability Act, 1963 (Act 176). For patrilineal inheritance family member means (1) mother and father, (2) wife, son and daughter, (3) brother and sister, and (4) father’s brother. For the matrilineal system family means (1) mother and father, (2) wife, son and daughter, (3) brother and sister, (4) mother’s mother, (v) mother’s sister, and (6) sister’s son, sister’s daughter, and mother’s sister’s daughter. This will seem to suggest some hierarchy even though this is not explicitly stated in the Act. Importantly, the careful observer will note that both lists exclude the husband. The explanation might be that this reflects the customary norm where husbands are generally expected to be the breadwinners for the family. A husband could therefore not qualify as a dependent under the estate of the spouse. This state of affairs has changed quite significantly since the coming into force of the 1992 Constitution. Spousal rights are provided for under article 22 and it can be inferred with a high level of confidence that any attempt to exclude the husband this way may be unconstitutional when articles 1 (2) and 2 (1) (a) and (b) are read together. Furthermore, under Ghanaian customary law a spouse is not considered part of the customary family of his or her partner and this might have a direct consequence for decision-making around deceased organ donation. I explore Ghanaian customary law in relation to interests/rights in deceased human bodies in detail elsewhere. The Konkomba run a patrilineal system of inheritance.

  6. This practice has developed in the absence of any guidance on hospital post-mortems in Ghana.

  7. There is no guidance on what the contents and formality of consent should be.

  8. See note 3 above.

  9. Codes of Practice will undoubtedly set clear standards for the guidance of the professionals and when these are flouted sanctions ought to be applied. For the importance of codes of practice and conduct see [29, p. 40 para 131; 46, p. 5; 48 and ss. 26 and 28 of HTA 2004].

  10. Transplant Links Community (TLC), is a UK registered charity that supports emerging countries in the management of Chronic Kidney Disease. They offer teaching, advice and carry out living kidney transplantation with the aim of ensuring that sustainable transplant programmes become possible in the future. It was established in 2006 by a group of British doctors with vast experience in transplant surgery and desirous of sharing their knowledge and expertise. For a more detailed look at their activities see; http://www.transplantlinks.org/, (last accessed on 30/10/2012).

  11. The Komfo Anokye Teaching Hospital (KATH) in Kumasi (the second largest teaching hospital in Ghana) is in the news for failing to account for bodies of some deceased babies that have gone missing. The public speculation that the bodies may have been sold by orderlies of the hospital prompted a mob attack on the hospital and its staff. The Ministry of Health has since ordered an investigation into the matter and a review of the hospital’s standard operating procedures. The Chief Executive has also been relieved of his post. Worryingly, two of such cases involving the Tema General and Winneba Hospitals are currently before the High Court. For more details see KATH baby missing saga: Health ministry axe hospital CEO; http://www.myjoyonline.com/news/2014/March-25th/kath-baby-missing-saga-health; last accessed on 26/03/2014.

  12. See note 3 above.

  13. For details of the outrage that characterised the organ retention scandals in the UK and how this shaped the HTA 2004 see [29, 37].

  14. See section 1 (2) (b) of Human Tissue Act, 1961 of the UK (England and Wales).

  15. For a very informative discussion of the effects of these failings on parents and families see [42].

  16. These matters came to my attention when I held discussions with the head of department of pathology at the Korle bu teaching hospital in Accra. It is the premiere referral facility in Ghana. The discussions were in respect of concerns from amongst the doctors about the need to assist them develop the appropriate frameworks (ethical and legal) to guide their practice. Further, I have personal knowledge of some of these matters because I worked in Korle bu teaching hospital from 2003 to 2008 (not much has changed since then) and by virtue of my position as founding head of the medico-legal unit of the GHS.

  17. For similar challenges in Canada see ‘Ontario apologizes for holding autopsy organs: Province apologizes for secrecy, asks families to claim 4,000 autopsy organs’ http://www.cbc.ca/news/Canada/Ottawa/Ontario-apologizes-for-holding-autopsy-organ, (last accessed 30/10/2013).

  18. Arguably, while consent necessarily implies the existence of an autonomous choice maker, authorisation does not. The Redfern report argues that in the case of children, the legal authority granted persons with parental responsibility is restricted to the best interests considerations of the child. It will however seem inappropriate to talk about best interests in the context of a dead child. Further, in respect of families of a deceased adult, family members may be content to allow organ donation but may not want to be burdened with the requirements of informed consent. It is to be noted that authorisation has since been adopted into law in Scotland; see sections 29, 30, 31, 32 and 33 of HTA (Scotland) 2006.

  19. For an interesting legal exploration of this controversy see [31].

  20. Emphasis added.

  21. I thank Dr. Sarah Devaney for this point.

  22. His argument is primarily that the possible large benefits to the living outweigh the small harms to the interests of the dead. I thank Prof. Søren Holm for this point.

  23. For a detailed philosophical exposition of the concept of the living-dead as understood in the wider African traditional context see [29] particularly pp. 24–26 and 81–89.

  24. Also see Article 26 of [7] and Sect. 1 of HRA 1998 of the UK.

  25. Sections 14 and 19 of the Gold Coast Supreme Court Ordinance (No. 4 of 1876) made English Law applicable in the Gold Coast (now Ghana) alongside Ghanaian customary law. Ghanaian law has also been influenced by Islamic law (civil) and given effect in the Marriage of Mohammedans Ordinance Cap 129 of 1951. The Ghanaian legal system is therefore pluralistic. This explains why common law as understood and employed in the Ghanaian socio-legal context includes case law, doctrines of equity and customary law rules. However, following the independence of Ghana on March 6, 1957 and its subsequent attainment of republican status in 1960, the Constitution and Courts Act of 1960 repealed this reception statute and English law has since ceased to apply with binding effect in Ghana. Ghana, as a democracy currently operates the 1992 Constitution as its supreme law. As a result cases from the UK, and all other countries especially the common law countries, are now of persuasive authority only.

  26. Emphasis added.

  27. See Chapter Six of [7] under the Directive Principles of State Policy specifically Article 39.

  28. Emphasis added.

  29. I assume for the purposes of this paper that there is the need to maximise supply of organs and that committing ourselves to doing so is a good thing.

  30. This paper does not discuss the thesis of good or bad death. It only explores how a transplant regulatory framework could benefit from such a thesis and draws attention to some conceptual inconsistency inherent in the thesis in the Konkomba traditional setting and shows how this inconsistency could be harnessed for the purposes of maximising organs for transplant. It is not claimed that all non-consensual organ retrievals necessarily make a death a bad death. Suffice to say that the Konkomba believe that dying is a process as such peri-mortem (period immediately before, at and period immediately after) events may contribute to making a particular death count as either bad or good at custom. Generally, ‘bad’ death in the Konkomba (and wider Ghanaian) traditional setting includes death by suicide; death of a pregnant woman; drowning; execution;, death in a place and situation where the required customary rites cannot be performed; and burial without certain vital organs such as brain and heart. These deaths have the potential to thwart the reputation of the decedent as ancestor. As a result, any post-mortem practices that offend the customs of any particular community and adjudged by the community to be a violation of their cultural or family rights, or inconsistent with a specified constitutional provision, may be challenged in the appropriate court. It follows then that not all non-consensual organ retention and use may be either unlawful or unconstitutional. For more information about what constitutes ‘good’ or ‘bad’ death see [34, 40].

  31. Such customary decisions are made by the traditional head of family or clan or community with the consent and concurrence of the principal elders of that family, clan or community as the case may be. Where uncertainty remains it is resolved by consulting spiritualists of traditional deities and soothsayers. A decision from this consultation is final.

  32. ‘Nkpawiin’ translates as collective solidarity.

  33. We may talk of legal, moral, or cultural rights among others. However, it is plausible to presume that all of these rights share a common defining feature which illumes their use in conventional rule systems. For a fuller exploration of rights see [8, 14, 44, 51]. I am also mindful here of the fine line between arguing that some rights are context-relative and the likelihood of slippage into the universalism v. relativism debate. I wish to state that no such slippage is intended as such any suggestion to that effect is regrettable.

  34. For a very exhaustive analysis of interests as adopted here see [17, pp. 65–95] especially at p. 74.

  35. Feinberg grounds his conception in harms as setback to interests; Pitcher uses the dualistic account (ante-mortem/post-mortem) and identifies the ante-mortem person as the subject of harm; Johansson argues in support of posthumous harms using the fusion of times account; Levenbook adopts the loss account of harms to achieve the same effect while Tomasini does so from a phenomenological perspective.

  36. For example, Partridge grounds the justification of respect for the reputation and wishes of the dead by appealing to moral agency, moral personality and social contract theory rather than in the concept of surviving interests; Callahan accounts for the respect for posthumous wishes by reference to intrinsic value, virtuous behaviour and wrongful failure of virtue while Taylor accounts for respect for the wills, reputations and wishes of the dead using the rule-consequentialist approach. Harris, on the other hand, accepts that some interests may survive the dead but argues they are not person-affecting and therefore can be set aside when balanced against person-affecting interests.

  37. This should be an incentive which will undoubtedly encourage a lot more to donate especially when understood and viewed from the Konkomba traditional principle of ‘nkpawiin’ or collective solidarity. For a similar ingenious and innovative incentive package for prisoners in the Philippines see [11].

Abbreviations

HTA:

Human Tissue Act

GMC:

General Medical Council

HRA:

Human Rights Act

GHS:

Ghana Health Service

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Acknowledgments

I wish to acknowledge the support, guidance and encouragement of Professor Søren Holm and Dr. Sarah Devaney. I am also grateful to my colleagues at the School of Law/Centre for Social Ethics and Policy (CSEP) of the University of Manchester for their kind comments and suggestions. Finally, I am extremely grateful to the anonymous Reviewers for their very helpful comments. I remain solely responsible for any errors or shortcomings in this work.

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  1. School of Law/Centre for Social Ethics and Policy (CSEP), The University of Manchester, Oxford Rd, Manchester, M13 9PL, UK

    Divine Ndonbi Banyubala

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Banyubala, D.N. Posthumous Organ Retention and Use in Ghana: Regulating Individual, Familial and Societal Interests. Health Care Anal 24, 301–320 (2016). https://doi.org/10.1007/s10728-014-0277-4

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