V. Preliminary Observations on the Bill

The drafting of an organ transplant bill has passed through several stages, particularly after it was confirmed that illegal organ trafficking exists on a broad scale in Egypt. The debate over the bill began in the People’s Assembly at the end of the 1990s, and it was controversial on the issue of organ transfer from the deceased to the living, the definition of death and the establishment of standards to define it.

In the latest attempt to adopt a law, the Ministry of Health submitted a bill to the People’s Assembly in March 2009. The submission of the draft was preceded by another debate on the definition of death, which coincided with the 13th conference of the Islamic Research Council, held on 10-11 March 2009. During the conference Dr. Mohamed Sayyid Tantawi, the Sheikh of al-Azhar, reiterated his approval of both living and deceased donations on the condition that there is no financial compensation involved. Leaving the definition of death to specialists, he said, “What has delayed the bill thus far is the disagreement among doctors on the definition of death.”³⁶ During the conference, Dr. Yusuf al-Qaradawi, the Secretary-General of the Federation of Muslim Scholars, objected to the refusal of some to recognize brain death, saying, “True death, as recognized by doctors around the world, is the death of the brain, and there is no provision in religious law or science that indicates it is the death of the heart.”³⁷ This opinion was also supported by Dr. Essam al-Erian during a workshop organized by the Center for Civil Education in conjunction with the Reform and Development Party (under establishment) on the same day. Dr. al-Erian attended the workshop as a representative of the Egyptian Medical Syndicate.³⁸

Although the health committees in both the People’s Assembly and Shura Council began to discuss the bill before the end of the last parliamentary session, the debate was not concluded and the bill was postponed to the current session. President Hosni Mubarak declared that the bill was a priority in his speech inaugurating the new session of parliament in November 2009. In the same month, a joint committee from the People's Assembly – comprising members of the Committee for Health and Environmental Affairs and the Committee on Legislative and Parliamentary Affairs - was formed to discuss the bill. In an unusual turn of events, the discussants strongly agreed on the importance of passing the bill and expressed a desire to overcome previous disagreements that had obstructed its passage in the past.  Finally, in a meeting held on 5 December 2009, headed by Assembly Speaker Fathi Surur and attended by Minister of Health Hatem al-Gabali, the joint committee approved the final draft of the bill and referred it to the Shura Council for its opinion on the matter.³⁹  Once the Shura Council approves the bill, it will be referred back to the People's Assembly where it will be finalized and voted upon, taking into account the Shura Council's comments.

The bill submitted by the Ministry of Health in 2009 is an important step towards a legislative framework that meets the aforementioned objectives. The bill prohibits the trafficking of organs and tissue, regulates organ transfer and transplant and protects against human rights violations, particularly the rights to life and health care.
The EIPR supports this legislation as consistent with the principles of human rights, while reiterating the need to take several fundamental measures to make the legislation effective.

The bill consists of 22 articles and creates a legislative framework that meets the general guidelines established by the WHO and other major conventions in accordance with internationally recognized standards.

 The text resolves the dispute over the definition of death, leaving the determination to a committee of three specialized doctors working in accordance with standards to be established by the law’s implementing regulations. This article offers a wise exit from the long-standing dilemma on the determination of death.

The bill also sets serious deterrent penalties for violations, particularly for organ traffickers.  It also addresses a set of vital regulations and conditions needed to regulate the transfer and transplant of organs and to prevent trafficking. For example, it establishes the licensing procedures for centers engaged in organ transfer and transplant as well as the foundation of care for patients with organ failure in order to guarantee they undergo a social and psychological evaluation before they are placed on the organ waiting list.  Licensing procedures will also guarantee follow-up and treatment for patients who undergo transplants. It upholds the principle of the fair distribution of organs obtained from the recently deceased and sets standards for the selection of living donors that are consistent with professional ethics. It also requires written consent from donors with full knowledge of all details of the donation during and after the operation. In short, these provisions provide safeguards and set guidelines consistent with international standards.

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36- ‘Ala’ Mustafa, “al-Imam al-akbar: ta’attul al-tashri’ mas’uliyat al-atibba’,” al-Ahram, 11 March 2009, p. 19.
 

37- Ibid.
 

38- Tamir Abu ‘Arab, “Atibba’ wa rijal din: qanun naql al-a’da’ ta’akhkhara kathiran,” al-Dustur, 11 March 2009, p. 4.
 

39- Nur ‘Ali, “al-Sha’b y uwafiq ‘ala qanun naql wa zira’at al-a’da’,” al-Yawm al-sabi’ online, 5 Dec. 2009; ‘Imad Fu’ad and Muhammad ‘Abd al-Qadir, “Lajnat al-sahha bi-majlis al-sha’b tuwafiq ‘ala qanun zar’ al-a’da’,” al-Masry al-yom, 6 Dec. 1009, p. 1.