New organ donation Bill sets rules for consent, brain death and unclaimed bodies
Hospitals cannot take organs from a person who has just died unless the person agreed to donate before death was declared, according to the Kenya Blood, Cells, Tissues and Organs Bill, 2026. The doctor who declares death cannot take part in removing the organs or in caring for the person receiving them. An independent transplant committee must approve the donation, and who gets the organ. Brain death must also be confirmed by two separate teams eight hours apart.
For unclaimed bodies, the Bill sets lighter rules. If a body stays in a mortuary for six months and no relative claims it, the proposed Kenya Blood and Transplant Authority may give permission to take cells, tissues or organs. Permission cannot be given if there is reason to think a relative is likely to claim the body. The Bill requires the Authority to also tell the public, through newspapers with wide circulation, that it plans to give permission.
Meanwhile, government agencies have asked MPs to rework the Bill, which would create the authority to regulate blood donation, transfusion and organ transplants.
The Council of Governors wants counties to keep the power to run blood banks, tissue and transplant services in their own hospitals, backed by national funding. It also wants a county seat on the authority’s board and no jail time for hospitals that breach certification rules.
The Attorney General's office has flagged missing transition rules for the board and unclear certification of transplant facilities. The Director of Public Prosecutions (DPP) wants clearer offences, victim protection, rules on evidence and a board seat. The Pharmacy and Poisons board wants limits so that the authority does not duplicate its oversight of blood-based medicines, devices and test kits. Submissions to the Health Committee also point to unclear wording on who is punished for selling an organ.
A successful kidney transplant can allow you to live longer.
What the Bill proposes
The Bill was published on April 2. The authority would take over from the blood and transplant department in the Ministry of Health. It would certify hospitals that give blood or do transplants, set up regional and satellite blood centres, and control the import and export of blood. Private blood centres would have six months to apply for a licence.
Clause 24 lists what counties must do, such as following national policies, getting people to donate, and providing safe transfusions. The Council says this understates county responsibilities and portrays counties mainly as implementing agencies. It wants a new line saying counties shall set up and run blood transfusion services, blood banks, tissue services, human milk banks and transplant services in their own health facilities, following the standards set by the law.
The Council also wants the penalties and enforcement powers softened. Clauses 25 and 26 say hospitals must be certified by the authority before they give blood or do transplants. The Council proposes a power to suspend a hospital's certificate if it is in breach, but only when this is needed to protect public health or patient safety. It also proposes removing jail time as a penalty.
As published, the Bill says a hospital that breaks the rule can be fined up to Sh500,000, jailed for up to two years, or both. The Bill's explanatory note says these provisions target unlawful and unregulated transfusion and transplanting. Other parts of the Bill carry far heavier penalties for organ crimes, including up to Sh50 million and 25 years in jail for removing organs without authorisation.
The Attorney General's office has pointed out several gaps and mistakes in the Bill. First, there are no transition rules for the board that would run the new authority. The Bill says the board's work should follow a governance framework, but the office says it is not clear which law that framework comes from, and this should be checked. It wants rules added to cover the board's business and affairs while the authority is being set up.
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The DPP, Renson Ingonga, through a representative, has asked the committee to change the Bill so that crimes under the law can be properly investigated and prosecuted. His office prosecutes crimes linked to blood, cells, tissues, human milk and organs, including trafficking, illegal removal and sale. It wants the Bill to respect its independence and to spell out who does what.
The office said the Bill should fit with other criminal laws or clearly separate from them to prevent overlapping, repeated or conflicting offences that could make prosecutions harder. It wants clear offences and penalties, and clarity on who determines guilt and imposes penalties, to avoid clashes between the authority, prosecutors and courts.
On victims, the office said it will lead in protecting and supporting people targeted by organ trafficking or illegal removal of organs. This includes identifying them and keeping their details confidential. It wants the Bill to match its policy on counter-trafficking, the Victims Protection Act and the Counter-Trafficking in Persons Act. It also wants the Bill to cover crimes that cross borders, including tracing money, getting legal help from other countries and working with international criminal justice bodies.
The Pharmacy and Poisons Board has also asked MPs to change the Bill so that the authority does not take over work the board already does under the Pharmacy and Poisons Act. Its Chief Executive Officer, Dr Ahmed Mohamed, through a representative, said parts of the Bill may overlap with the board's powers over medicines made from blood, medical devices and diagnostic test kits.
The board proposes that the authority oversee donated blood, blood components for transfusion, blood banks and transfusion services. The board would keep control of blood-based medicines such as albumin and clotting factors, and of devices and test kits.
Apart from the fight over who controls services, the Bill sets out when cells, tissues and organs can be taken from living people. A living donor cannot give an organ without the authority’s approval first. For a living donor who is not a relative, the authority can approve only if the person is willing and has agreed, and the procedure carries little risk. A person who performs a transplant from a living donor without that approval can be fined between Sh20 million and Sh50 million, jailed for up to 10 years, or both.
Under clause 69, anyone who offers, gives or receives payment for organs can be fined between Sh5 million and Sh10 million and jailed for five to 10 years.
Clause 103(2) is unclear about who it would punish. It says a person who sells one or a pair of organs of a living donor for financial or any other form of compensation commits an offence. It sets a penalty of up to Sh50 million, up to 25 years in prison, or both. The clause could mean a donor who sells their own organ, or anyone, such as a broker or a clinic, who sells organs taken from a living donor. It does not say which. It also makes no exception for people who were forced, tricked or trafficked into giving up an organ, and it does not mention consent. The DPP's office has asked that offences in the Bill be clearly and precisely defined, and that the Bill avoid overlap and repetition between offences.
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