Kidneys for sale: A case of self-defense?

The news over the past few weeks in Singapore is that a few people have been charged in relation to two transactions where kidneys were offered for sale. So far, two sellers, one would-be buyer and two middlemen have faced various charges under the Human Organ Transplant Act ("HOTA"). As these cases are pending, I do not propose to venture into discussing specifics.

While organ transplant is not typically what you will see in a tech-law column, I would add that its impact would be. In a world where technology has enabled procedures such as organ transplanting to be possible, the ethical issues that are presented need to be addressed.

Ethically, the great fear is that the organ trading disadvantages the poor who cannot make an informed choice and will be exploited in the process. Legislation is the preferred means by which the ethical stances to ban organ trading is taken.

I can understand the ethical concerns. I can also understand the pains of those who befallen by this disease through no fault of theirs and the anguish of their loved ones. These ethical questions will undoubtedly be debated over the coming days as Singapore's health minister has refused to rule out reversing the ban on organ trading.

An interesting issue arises to those legally-minded. The law provides a defense for offences if one can show a right of private defence. In a nutshell, it allows the commission of certain acts to defend one's body or property. Such a right is disqualified in cases in which there is time to have recourse to the protection of the public authorities, and does not extend to inflicting more harm than it is necessary to inflict for the purpose of defence. Therefore, if someone swings a bat at an armed robber charging at him with a knife and in the process seriously injures the robber, he may plead self-defense as provided in the Penal Code.

The question arises whether one can plead self-defense in committing a breach of the ban on organ trading--there is a reasonable apprehension of death, and this justifies the action taken in offering to buy the kidneys.

The key hurdle will be that the Penal Code was never enacted to take into account this scenario, and such a reading may render the ban on organ trading under the HOTA useless as self-defense can always invariably be pleaded, thus defeating the express legislative intent of the HOTA.

These propositions will undoubtedly delight legal academics but for those unfortunately afflicted, the issues remain close to their heart.

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Bryan Tan

Called to the Singapore and English Bars, Bryan Tan has practised in two of Singapore’s largest law firms and an international law firm. Bryan led many industry firsts including the first mass e-mail defamation case in the world, Singapore’s first publicised telecoms competition dispute, a pan-Asian co-branded travel portal, the first privately-funded cable landing project in Singapore and the world's first registrar-level domain name dispute. His areas of practice include information technology, telecommunications, biotechnology and bioinformatics, Chinese intellectual property, entertainment law and corporate work. He is also an author of Halsbury's Laws of Malaysia: E-Commerce. He also co-wrote the Singapore chapter of 'Digital Evidence' with Prof. Daniel Seng and is writing Halsbury's Laws of Singapore: E-Commerce.