A Selection of Constitutional Perspectives on Human Kidney Sales

There are thousands of desperate people globally who need a kidney for transplantation. The number of people who require a kidney transplant continues to escalate faster than the number of kidneys available for a transplant. The specific focus of this article is to determine whether the payment of kidney donors could be regarded as constitutionally acceptable or not. To establish the constitutional acceptability of the reimbursement of kidney donors the following rights are analysed: the right to life, the right to human dignity, the right to self-determination, the right to privacy, and the right of access to healthcare services. Case law regarding the above is also included. After careful consideration of all of the above it is concluded that it should be regarded as constitutionally acceptable to remunerate a kidney donor for his kidney.


Introduction
At the back of the abdominal cavity, just above the waist of the human body, two extremely vital organs are located. These organs are approximately 10 to 13 cm long and about 5 to 8 cm wide. They represent only 0,5% of the body's total weight, but together these two organs contain about 160 km of blood vessels that receive 20 to 25% of all the blood pumped by the heart. 1 The body's total blood supply circulates through these organs about 12 times per day, and every hour they filter about 7,5 litres of blood. 2 These organs have the life-sustaining task of removing waste products and excess fluids from the body, and they will continue performing their task until they have lost 75 to 80% of their function. 3 These organs are known as the human kidneys, and although most of us are born with two kidneys, life with only one kidney is possible. If a person's kidney does not perform its required function any more, he will have to undergo dialysis treatment until a kidney becomes available for organ transplantation.
Organ transplantation refers to a surgical operation where an organ is taken from one patient's body (also known as the "organ donor") and is placed into another patient's body (known as the "organ recipient"). The objective of organ transplantation is to restore a happy and useful life to a patient who was once doomed to a premature death due to a fatal disease of a vital organ. 4 Two main organ procurement systems are acknowledged internationally: an "optingin" system and an "opting-out" system. The opting-in system is a voluntary and altruistic system. According to this system a person has to give explicit informed consent before his death, confirming that he wants to donate his organs. 5 Countries that follow the opting-in system include South Africa, 6 Iran, the United Kingdom and the United States of America. 7 In contrast with the opting-in procurement system is the opting-out system. According to this system everyone is a potential organ donor unless the person has registered before death that he does not want to be an organ donor. 8 Countries that follow the opting-out system generally have a higher success rate. These countries include Singapore, Spain, Belgium and France. 9 Neither of these organ procurement systems has been able to drastically improve the organ shortage of the countries that the systems are adopted in.
The purpose of this article is to establish if the sales of human kidneys could be regarded as constitutionally acceptable and thus as a solution to the current organ shortage. The South African Constitution 10 is the supreme law of South Africa, and any legislation that is irreconcilable with it is invalid to the extent of the conflict. In this article a number of sections will be analysed, namely the rights to life, human dignity, self-determination, privacy and healthcare. These sections will be analysed to establish if it would be regarded as constitutionally acceptable for a person to be remunerated for the donation of one of his kidneys. One is already given the option to save a life by donating a kidney. One should also be allowed to choose to save a life and be remunerated for the deed. 5 Schicktanz, Wiesermann and Wöhlke Organ Transplantation 6. 6 If a person decides to become an organ donor in South Africa he is not placed on any list. A person can indicate his wish to become an organ donor to the Organ Donor Foundation. Once this is done, the donor will receive a card and two stickers for his identification document and driver's licence, to indicate that he is a donor (Organ Donor Foundation 2012 http://bit.ly/YqtVB8).

Human rights and kidney transplants
Imagine a world where human rights are seen as inconsequential. Everybody including the government would be free to do as they please and to treat other people as they like. In this world it would not be frowned upon if people were discriminated against on grounds of their race, religion or sexuality. Treating human beings with complete disdain and utter disregard for humanity would be commonplace. Incarceration in concentration camps, committing genocide, these horrific acts would be seen as justifiable based on prejudicial rhetoric. Furthermore in this fictional world it would not be regarded as unacceptable if non-consensual experiments were performed on human beings such as having their bones broken and their wounds infected until they had seizures and suffered cardiac arrest. 11 If all of this sounds familiar it is because this world without human rights once existed before 1947. The horrific scene described above describes only some of the atrocities that took place during the Holocaust. During this era human rights weren't regarded as being as important as they are today and many atrocities were committed by the Germans against the Jewish people. The Holocaust led to the Nuremberg Trials, 12 and these trials led to the Nuremberg Declaration that was promulgated in 1947. 13 The Nuremberg Declaration has limited applicability as it deals specifically with human research and experimentation only; nonetheless it was the first step in the direction of the modern era of human rights. 14 It was in 1948, one year later, however, that the most significant development in human rights took place -the adoption of the Universal Declaration of Human Rights by the United Nations. 15 The Universal Declaration of Human Rights was adopted to set international standards of human rights, firstly to defend individuals against the abusive powers of organs of state and secondly to promote the opportunity for 11 Newman 2010 http://bit.ly/YHND7y. 12 The Nuremberg Trials were a series of military tribunals held by the victorious allies of World War II. The best known of these trials was the trial of the major war criminals where German officials were tried for crimes against peace, war crimes, and crimes against humanity (Schmidt individuals to develop through measures such education, healthcare and the provision of a safe living environment. 16 It is clear that the relationship between human rights and medical ethics is undeniable. Human rights can be defined as the rights that we have as people from birth until death. They are comprehensively defined in various documents and codes. 17 In South Africa they have been codified into international, regional and national human rights law. Firstly, human rights are protected by the International  20 As can be seen from these, human rights are broadly divided into categories. The three categories are civil and political rights, economic, social and cultural rights, and environmental rights. This article will focus mainly on the first two categories of human rights.
Civil and political rights, which are also known as 'first generation rights,' were introduced to protect people from oppression by the state. 21 First generation rights ensure that everyone is entitled to participation in the political process and is free from interference by the government as long as his or her actions are not harmful to others. 22 An example of a first generation right is the right not to be subjected to medical or scientific experimentation without consent.
Economic, social and cultural rights, which are also known as 'second generation rights,' were introduced because people need more than freedom from interference from the state to survive. For instance, they need access to economic and other resources like food and shelter to ensure an adequate standard of living. 23 An example of a second generation right is the right of access to healthcare. Section 231 of the Constitution clearly states the importance of International agreements.
The section reads that: any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. 24 At regional level South African human rights are protected by the African Charter of Human and People's Rights. 25 In this article both the international and regional human rights instruments are mentioned briefly in relation to the specific human rights pertaining to kidney transplants.
The most important national document that protects South African human rights is the Constitution, or more specifically the Bill of Rights. The Constitution has a general impact on kidney transplants in three sections. In section 2 it is stipulated that the Constitution is the supreme law and that any law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. Secondly it is stated that the Bill of Rights must be respected, protected and fulfilled by the state. 26 Thirdly in section 39(1) it is stipulated that when interpreting the Bill of Rights, a court, tribunal or forum must promote values such as human dignity, equality and freedom, and that International law must be considered and Foreign Law may be considered. In the Constitution there are also more specific fundamental human rights relating to kidney transplants such as the right to life, the right to human dignity, the right to self-determination, the right to privacy and the right of access to health-care services. These rights are discussed below. However, all of these fundamental human rights are not absolute and may be limited or restricted by section 36 of the Constitution. 23 Dhai and McQuoid-Mason Bioethics 37. 24 Section 231(4) of the Constitution. 25 The African Charter of Human and People's Rights (1981), hereafter referred to as the ACHPR. 26 Section 7(2) of the Constitution. The right to life is, in one sense, antecedent to all the other rights in the Constitution. Without life in the sense of existence, it would not be possible to exercise rights or to be the bearer of them.
The importance of the right to life has been reflected by the fact that the right is protected by all international and regional human rights instruments. 38

International and regional human rights instruments
The right to life is firstly and most importantly protected by the UDHR, Article 3 of which clearly states that: "everyone has the right to life, liberty and security of person". The right to life contained in the UDHR has become so established in international law that it is described as having a jus cogens 39 character, thus meaning that no derogation of this right is permitted. 40 The right to life is also 36 Carsten  44 Even though the various international and regional human rights instruments may vary regarding the right to life, all of the instruments have in common the assertion that everyone has a right to life and that the state has an obligation to protect this right. In South Africa the right to life is ensconced in the Bill of Rights.

The Constitution
The year  power only from a written constitution and that its powers would be limited to those set out in the Constitution. 46 The Constitution as described in Makwanyane: provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex. 47 The Constitution contains a Bill of Rights that protects the rights of each South African citizen. One of the most fundamental rights provided by the Constitution is found in section 11 and reads that everyone has the right to life which, along with the right to human dignity, must be valued above all other rights. 48 The absoluteness of the right to life has also been upheld in a decision of the Hungarian Constitutional Court. 49 In this decision it was said that other rights may be limited and may even be withdrawn and then granted again, but the right to life is absolute and must be preserved at all times. 50 The South African Constitution differs from most other constitutions 51 and also from the ICCPR due to the fact that it does not qualify the right to life. 52 In the other constitutions the right to life is qualified due to the fact that the right to life may not be deprived arbitrarily. 53 Chaskalson P remarks in the Makwanyane case that the right to life is given greater protection in the South African Constitution due to the fact that it is unqualified. 54 According to section 7(2) of the Constitution the state has obligations to respect, protect, promote and fulfil the right to life. These obligations impose negative and positive duties on the state.
The negative duty implies that the right to life must be protected to the extent that 46 Currie

The right to life and kidney transplants
In all the international and regional human rights instruments that were mentioned above it is obvious that everyone has a right to life and that this right may not be deprived arbitrarily. Makwanyane that the right to life is one of the most important rights and the source of all other rights, and that these rights must be valued and the state must demonstrate this in everything that it does. 76 Thus the state could supply these patients with an alternative that is within their available resources. These patients could be allowed to obtain a kidney for transplant purposes by buying it in a constitutionally acceptable manner. Then only will these patients be able to enjoy their human existence instead of having a right to a life that entails constant pain and suffering.

The right to human dignity
The right to human dignity entails the acknowledgement of the intrinsic worth of human beings. 77 Human dignity is regarded as one of the supreme human rights.
The reason for this is because the right to life and the right to human dignity are joined at the hip, as stated in Makwanyane by Ackermann J: 78 The right to life, thus understood, incorporates the right to dignity. So the rights to human dignity and life are entwined. The right to life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity. 74 As stated in the Soobramoney-case, Soobramoney was very ill. He was a diabetic who suffered from ischaemic heart disease and cerebro-vascular disease. He had suffered a stroke and was in the final stages of chronic renal failure (Soobramoney-case para 1). 75 In this case the Court suggested that the application of ss 27(1) and 27(2) of the Constitution were more appropriate to the facts of the case than ss 11 or 27 (3)  Everyone has the right to be treated in a dignified and humane manner. 79 The importance of human dignity is incorporated in various international human rights instruments as well as national constitutions. It is thus clear to see that human dignity is regarded as a universal duty and a universal responsibility. 80

International and regional human right instruments
The main purpose of the right to human dignity is to try to correct the substantial violations of human dignity in the past and to prevent the reoccurrence of such violations in the future. 81 The UDHR emphasises the importance of human dignity in its preamble, which states that the recognition of the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world.
The right to human dignity is also protected in article 1 of the UDHR, which reads: "all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." Additionally both the ICCPR and the ICESCR proclaim in their preambles that human rights are derived from the inherent dignity of the human person. Furthermore the Universal Declaration of Human Responsibilities 82 explicitly asserts the importance of human dignity in articles 1 and 2 -which are categorised under the heading "Fundamental Principles for Humanity". Article 1 reads: "every person regardless of gender, ethnic origin, social status, political opinion, language, age, nationality or religion has a responsibility to treat all people in a humane way." Article 2 takes the responsibility even further and reads: "no person shall lend support to any form of inhumane behaviour, but all people have a responsibility to strive for dignity and the self-esteem of all others".
At regional level the right to human dignity is directly protected in article 5 of the ACHPR, which reads: "every individual shall have the right to the respect of the dignity in a human being and to the recognition of his legal status". also protected in relation to the right to life in article 4 of the ACHPR, which reads: "every human being shall be entitled to respect for his life and the integrity of his person". In comparison with Western philosophies, African traditions lay great emphasis on the responsibilities of an individual as compared with his rights. 83 In a Western context the main focus is on individual rights, whereas in an African context the focus is on community responsibility and loyalty. 84 A perfect example of this African sense of community is ubuntu. In the system of ubuntu the life of another person is at least as valuable as one's own; thus respect for the dignity of every person is integral to it. 85 Ubuntu is comprehensively explained by Mokgoro J in Makwanyane: Generally, ubuntu translates as humaneness. In its most fundamental sense, it translates as personhood and morality. Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation. 86 It can easily be deduced that the right to human dignity plays a very important role in the South African Constitution since, as stated in section 1 of this contribution, South Africa is a sovereign democratic state founded on human dignity, freedom and equality.

The Constitution
In South Africa human dignity is regarded as the focal point of the

The right to human dignity and kidney transplants
In section 10 the Constitution of South Africa specifically guarantees the right to human dignity. 97 It is clear to see from the discussion above that the right to human dignity, like the right to life, is the fountain from which all other fundamental human rights flow. Both of these supreme rights have an absolute nature and must be preserved at all times. 98  My kidney is not my humanity. In part, dignity is something that we convey by our behaviour and attitudes. If we establish a regulated system of sales, then it is our responsibility to create a culture of dignity for the paid donor. Many have suggested that the term "paid donation" or "rewarded gifting" be used to confer dignity to the procedure. Once sentenced, the prisoner waits on death row in the company of other prisoners under sentence of death, for the processes of their appeals and the procedures for clemency to be carried out. Throughout this period, those who remain on death row are uncertain of their fate, not knowing whether they will ultimately be reprieved or taken to the gallows.
The question that should be asked is how the situation of the prisoner on death row differs from that of the patient with end-stage renal failure. The patient who receives renal dialysis is basically on "death row." He receives his dialysis treatment along with other patients that are in the same position as he is. Like the prisoner on death row the patient is also uncertain of his fate. Section 7(2) of the Constitution entails that the state must respect, protect, promote and fulfil the right to human dignity. From the above discussion it is evident that renal dialysis causes a decrease of a person's human dignity. It is also evident that a renal transplantation has the opposite effect and increases the person's dignity. In addition, it has been emphasised in this section that the sales of human kidneys would not lead to a decrease of human dignity. Thus the sales of human kidneys should be considered by the state as a viable and constitutionally acceptable manner to save thousands of lives whilst protecting a person's right to dignity.

The right to self-determination
The right to self-determination implies that a person has a right to make decisions regarding his own body. Self-determination is closely associated with the bioethical perspective of respect for autonomy that incorporates the doctrine of informed The idea of control of our own bodies is something that we as human beings practise every day through the various decisions that we are entitled to make. The importance of this right is clearly reflected in various international and regional human right instruments.

International and regional human right instruments
Like all other fundamental human rights the right to self-determination is firstly and most importantly protected by the UDHR. Article 3 stipulates that every individual has a right to life, liberty and security of person. Article 3 is comprised of three different rights: firstly the right to life, which includes the right to a humane existence (as discussed above), secondly the right to personal freedom, and lastly the right to security. The right to security entails the right to be protected against interference from the state as well as the protection of one's integrity. 114 The fact that the right to the security of the person is listed along with the right to life could mean that this right should be regarded as being just as important as the right to life and human dignity. In international law the right to self-determination has been described as "one of the essential principles of contemporary international law" and it has been said that this right enjoys an erga omnes 115 character. 116 Additionally the right to self-determination is protected by the identical provisions of the ICCPR and the ICESCR. Article 1 of these human right instruments provides that: "all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development". At regional level the right to determination is even less precise. The ACHPR protects this right in article 20, which reads: "All peoples shall have the right to existence.
They shall have the unquestionable and inalienable right to self-determination. They shall freely determine that political status and shall pursue their economic and social development according to the policy they have freely chosen". The right to selfdetermination represents one of the most important roots of modern international human rights protection. 118 Because this right is broadly defined, the African Commission has made numerous attempts to determine what exactly honouring the right to self-determination entails. 119

The Constitution
The right to self-determination is guaranteed by the Constitution in section 12(2)(b), which reads: "Everyone has the right to bodily and psychological integrity, which includes the right to security and control over their body". As noted by Ackermann J in Ferreira v Levin 120 the purpose of this section is to protect aspects of bodily selfdetermination. In Phillips v De Klerk 121 the right to control one's own body was recognized in so far as that right is not in conflict with the overriding social interest: The mentally competent individual's right to control his own destiny in accordance with his own value system, his "selfbeskikkingsreg", must be rated even higher than his health and life.
The right to self-determination basically entails the right to be left alone, and in relation to one's body the right creates a sphere of individual inviolability. 122 Section 12(2)(b) explicitly illustrates that this inviolability has two components, namely "security in" and "control over" one's body. The former entails the protection of bodily integrity against intrusions by the state and others; consequently the right to 118 Killander "African Human Rights Law" 401. 119 The African Commission has attempted to determine the exact parameters of the right to self- be left alone in the sense of being left unmolested by others. 123 The latter entails the protection of what is described as bodily autonomy or self-determination against interference; consequently the right to be left alone in the sense of being allowed to live the life one chooses. 124 In this section I will focus mainly on the latter right.
The fact that self-determination is an essential right is clearly illustrated by the capacity it protects -the capacity to express one's own character. 125 By recognising an individual right of self-determination the Constitution makes self-creation possible. It allows each one of us to be responsible for shaping our lives according to our own distinctive personalities. Kriegler J observed in Ex Parte Minister of Safety and Security: In re S v Walters 126 that if the right to life, to human dignity or bodily integrity are compromised than the society to which we aspire becomes illusory.
Kriegler J further emphasised the fact that any significant limitation to any of these rights would for its justification demand a very compelling countervailing public interest. 127 But if a person is allowed to decide upon the fate of his own body, could the scope of such self-determination possibly be extended make it possible for a person to have the right be remunerated for a kidney donation? ... the state's interference would clearly constitute an impairment of women's right "to bodily and psychological integrity" and more particular their right "to make decisions concerning reproduction" and "to security in and control over their body".

The right to self-determination and kidney transplants
Why is the termination of a pregnancy constitutionally acceptable yet a kidney donor is not granted the choice to be remunerated for the donation of his kidney? The Constitution clearly states that "everyone" has the right of control over their body, thus the kidney donor should be allowed to receive remuneration for his kidney if he wishes. At the very least, he or she should be given the choice of being remunerated. Presently a person only has the choice to donate a kidney altruistically.
The pregnant mother is allowed to end the life of her unborn child because she firstly has the right to bodily and physically integrity and secondly the right to control over her body. As stated in the Christian Lawyers case 131 "the fundamental right to self-determination itself lies at the very heart and base of the constitutional right to termination of pregnancy".
Consequently, on the grounds of section 12(2)(b) of the Constitution a kidney donor has a right of control over his body and thus has the right to do with his body as he pleases. If one is allowed to end a life due to the possession of one's fundamental right to self-determination than surely one should be allowed to save a life based on this exact same right. To make matters even worse, according to section 5(3) of the choice on termination of pregnancy act, any woman of any age is allowed to consent to an abortion. 132 The implication of this section is that a minor as young as 12 years old is allowed to legally terminate her pregnancy without the consent of a parent. If a minor is allowed to make vital decisions regarding her body it could be argued that a competent adult kidney donor should be allowed to decide to donate a kidney and benefit financially in return.
Because of a person's strong right to self-determination a person even has the right to refuse medical treatment. 133 In most cases the refusal of medical treatment results in death. It could be argued that if a patient is allowed to make decisions that could result in his death then a kidney donor should surely be allowed to make the decision to donate his kidney and receive remuneration for the donation. Donating a kidney does not result in death, as is the case with abortion or the refusal of medical treatment. It results in quite the opposite: it saves the life of another person.
Section 7(2) of the Constitution entails that the state must respect, protect, promote and fulfil the right to self-determination. From the above discussion it is clear that the right to self-determination has already been developed to a certain extent. It is regarded as constitutionally acceptable for women to terminate their pregnancies due to this right and for patients to refuse essential medical treatment. Both of these practices result in death -firstly the death of the unborn child and secondly the death of the patient. I am of the opinion that if a person is allowed to make such a decision on the grounds of the person's constitutional right to self-determination, then a kidney donor should be allowed to receive remuneration for his kidney donation. The kidney donor is also entitled to the right to make decisions regarding control of his body. It should be borne in mind that a person is already legally allowed to donate his kidney, it is the remuneration of a kidney donation that is regarded as illegal. The question however could be raised what difference would the 132 Section 5(3) of the Choice on Termination of Pregnancy Act 92 of 1996 reads: "In the case of a pregnant minor, a medical practitioner or registered midwife, as the case may be, shall advise such a minor to consult with her parents, guardian, family members or friends before the pregnancy is terminated: Provided that the termination of the pregnancy shall not be denied because such a minor chooses not to consult them" (Own emphasis added).

International and regional human right instruments
The protection of territorial and communications privacy is explicitly guaranteed in the UDHR. Article 12 reads: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
The right to privacy is also further dealt with in article 17 of the ICCPR. The right to privacy is not explicitly guaranteed in the ACHPR but it is found in most domestic bills of rights such as the South African Bill of Rights.

The Constitution
In South Africa an individual's right to privacy is protected by both the common law and the Constitution. According to the common law every person has an independent personal right to privacy. In this section, however, I will focus only on a person's constitutional right to privacy.
Section 14 of the Constitution reads that "everyone has the right to privacy, which includes the right not to have their person or home or property searched, their possessions seized or the privacy of their communications infringed". The right to privacy has two parts: the first guarantees a general right to privacy and the second protects people against specific infringements of privacy such as searches, seizures and the infringement of communication. 137 It should be noted that unlike the three fundamental human rights discussed earlier, the right to privacy is not absolute. It can be limited in accordance with section 36 (the limitation clause) of the

The right to privacy and kidney transplants
Information pertaining to a person's health is regarded as highly confidential, and as stated above it is protect by the Constitution, the National Health Act and the The right to health did not officially emerge from an international human rights instrument as did other fundamental rights but rather from an international health authority. 152 In the preamble to the constitution of the World Health Organisation, 153 which was written in 1946, it was proclaimed that: "the enjoyment of the highest attainable standard of living is one of the fundamental rights of every human being".
According to the WHO, health can be defined as: "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity".
Unfortunately, for the majority of the world and especially for South Africa, reality falls far short of the WHO standard.
The right to health is further protected by international and regional human rights instruments.

International and regional human rights instruments
The right to health is protected in the first place by Article 25 of the UDHR, which reads: "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family including food, clothing, housing and medical care ...". 154 The UDHR aims to promote "a common standard of achievement for all peoples and all nations". 155 Unfortunately the UDHR has one missing component with regard to the right to health. It does not impose an obligation on the state to take positive measures toward the realisation of this right. This lacuna was addressed and corrected by the ICESCR. Article 12(1) of the ICESCR reads: "The State Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". The steps required for the realisation of these rights are stipulated in Article 12(2) of the ICESCR. 156 The obligation to take steps toward the realisation of this right is mandatory, but every state has a margin of discretion in the choice of appropriate means for satisfying the right to health. 157 The Committee on the ICESCR has established that there must be a maximum deployment of available resources towards the realisation of the right to health. 158 If a state cannot meet the full realisation of a right due to its lack of resources, it must at least endeavour to meet a certain minimum-level content of the right. 159 Consequently it can be deduced that the state must demonstrate that it has deployed its available resources to the maximum extent. It should be borne in mind that the Committee also emphasised 154 The Article further states that everyone has the right to security in the event of unemployment, sickness, disability, widowhood, old age or other circumstances beyond his control resulting in the lack of a livelihood. The author regards only the first part of this definition as important to the discussion of the right to healthcare. 155 Ngwena and Cook "Rights Concerning Health" 111. 156 Article 12(2) of the ICESCR reads: "The steps to be taken by the State Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for: that the availability and accessibility of health care for all individuals is a provision that should be sensitive to medical ethics and distinct cultures. 160 As a result of the influence of international human right instruments the right to health is also protected on regional level by the ACHPR. Article 16(1) reads "Every individual shall have the right to enjoy the best attainable state of physical and mental health". Article 16(2) provides for the realisation of the right by stating that: "State parties to the present Charter shall take necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick". It is clear that the right to health is an important right although compliance with its obligation remains rather problematic.
The right to health is explicitly recognised as a fundamental right in the Constitution.

The Constitution
During the era of apartheid 161 South Africa perpetrated a number of violations against the human right to health. The racial segregation of white and black people affected people's health in a number of ways. The health of the disadvantaged was affected due to the poor social conditions in which they lived, which caused ill health, the segregation of state health services, and the state's unequal spending on health services. 162 Since 1994 health in South Africa has been recognised as a fundamental human right.
The right to health is guaranteed explicitly by the Constitution in section 27(1)(a), which reads: "everyone has the right to have access to health care services, including reproductive health care." 163 It should be emphasised that the Constitution does not guarantee a right to health, but only the right of access to health care 160 UN CESCR 2000 http://bit.ly/102nBOG para 12. See also Rehman International Bill of Rights 119. 161 From 1948 to 1994. 162 Heywood "Background to Health Law" 11. 163 Section 27(1) of the Constitution further states that everyone has the right to have access to sufficient food, water and social security. These rights, however, will not be discussed in this section.
services. Section 27 not only allows a person to have access to health care but it also follows the international example of the ICESCR by stating that the government has a duty to steadily improve people's health care. Section 27(2) reads that: "the state must take reasonable legislative measures, within its available resources, to achieve the progressive realisation of each of these rights." Section 27 imposes both positive and negative obligations on the state. The positive obligation pertaining to section 27(1) is discussed above. Section 27(3), however, imposes a negative obligation on the state by stipulating that no person may be refused emergency care. As with all other rights in the Bill of Rights, the state's general positive duties regarding these rights are set out in section 7(2) of the Constitution. The state is required to respect, protect, promote and fulfil the right to health. Section 27 is not an absolute right and is subject to the limitation clause.
It should be borne in mind, however, that section 27 is not the only constitutional provision dealing with a right concerning health. As discussed earlier in this chapter the right to bodily and psychological integrity also directly protects a person's health.
Furthermore, the health of children and prisoners is also directly protected by section 28(1)(c) 164 and section 35(2)(e) 165 of the Constitution respectively. There are additional rights that have an indirect bearing on the right of health, such as the rights to life, human dignity, equality and housing. 166 As a socio-economic right, the right to healthcare poses a challenge to the courts in that the development of socio-economic rights jurisprudence in South Africa is still in its infancy. 167 The Constitutional Court has affirmed, though, that socio-economic rights are justiciable and that the principle of the separation of powers does not have the effect of depriving courts of competence over such rights. 168 There have 164 Section 28(1)(c) of the Constitution reads that: "Every child has the right to basic nutrition, shelter, basic health care services and social services". 165 Section 35(2)(e) of the Constitution reads that: "everyone who is detained, including every sentenced prisoner, has the right to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment". 166 Ngwena and Cook "Rights Concerning Health" 130. 167 Ngwena 2000 Med Law Int 2. 168 Ngwena and Cook "Rights Concerning Health" 132.
been four Constitutional Court decisions that have a direct impact on the development and the understanding of the right to health care. In this section I will briefly discuss only three of these cases and the direct influence they have had on the right to health. 169 The relevance of these cases pertaining to kidney transplants will be discussed later in this article. The purpose of the right seems to be to ensure that treatment is given in an emergency, and is not frustrated by reason of bureaucratic requirements or other formalities. What the section requires is that remedial treatment that is necessary and available be given immediately to avert harm (Soobramoney v Minister of Health KwaZulu Natal 1997 12 BCLR 1696 (CC) para 20). 175 Soobramoney v Minister of Health KwaZulu Natal 1997 12 BCLR 1696 (CC) para 21. 176 Berger "Constitution and Public Health Policy" 36. 177 Minister of Health v Treatment Action Campaign 2002 10 BCLR 1033 (CC) -hereafter referred to as the TAC-case. mother-to-child transmission constituted a number of breaches of the provisions of the Constitution. The provisions that were being breached were section 7(2), 10, 12(2)(a), 27, 28(1)(c), 195 178 and 237. 179 The applicants had been successful before the High Court, but the case had focused especially on the interpretation and application of section 27 (1) and (2)  These are the socio-economic rights entrenched in the Constitution, and the state is obliged to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of each of them. In the light of our history this is an extraordinarily difficult task. Nonetheless it is an obligation imposed on the state by the Constitution.
In this case it was held that the decision to confine Nevirapine to only 18 pilot sites was unreasonable and thus constituted a breach of the state's obligations under sections 27 (1) and (2)  Instead it has to make out a case that it is indeed limited by resources. 186 If a certain resource has been limited for a number of years, is the state not under an obligation to provide an alternative that could relieve the need for it?

The right to health and kidney transplants
In 1946 the WHO proclaimed that the highest attainable state of health is an objective to aspire to. It is all too evident that this objective has not been met in South Africa and will not be met in the near future. With the support of the relevant case law I should like to ask if the state is fulfilling its obligation in relation with the right to health. Thus, does the state really attempt to take reasonable legislative and other measures within its available resources to achieve the progressive realisation of health in the context of the availability of donor kidneys for transplant purposes?
The author also asks if the state could not be expected to do more to provide an alternative, which where they lack the available resources to make more donor kidneys available would be to permit the remuneration of kidney donors. 183 Khosa  Moellendorf 1998 SAJHR 330. 193 Ngwena and Cook "Rights Concerning Health" 137. 194 Berger "Constitution and Public Health Policy" 37. 195 The cost of a kidney transplantation, R250 000, includes the cost of the ImmunoPro Rx medication that must be taken in the first three months. After the procedure the cost of a kidney transplant is approximately R100 00 per annum, as opposed to the cost of renal dialysis, which is R200 000 per annum. The state has to manage its limited resources in order to address all these claims. There will be times when this requires it to adopt a holistic approach to the larger needs of society rather than to focus on the specific needs of a particular individual within society.
If the Constitution allows the remuneration of kidney donors, then the state will be attending to the larger needs of society, seeing that there is a dire need for viable donor kidneys in South Africa.
The approach of the Court in the TAC-case clearly illustrates that the idea of the minimum core should be seen as integral to rather than independent from the question of whether or not the state has taken reasonable legislative and other measures to discharge its duty. 200 Ngwena and Cook are of the opinion that: 201 Treatment Action Campaign itself is an instance where the state lost sight of its obligation concerning protecting health and the notion of providing a minimum floor or protection that was easily within its reach.
It could be asked if the state has not also lost sight of its obligations concerning the right to health of patients with end-stage renal failure.  199 Soobramoney-case para 31. 200 Ngwena and Cook "Rights Concerning Health" 143. 201 Ngwena and Cook "Rights Concerning Health" 143. that kidney patients, like the mothers and children in the TAC case, also have a right to their life-saving treatment. "A floor of minimum protection," as said above, is easily within the state's reach concerning kidney recipients. If the remuneration of kidney donors were to be allowed, more kidneys would be available and there would not be a lack of available resources.
As averred in the Khosa and Mahlaule cases, the state cannot merely plead poverty.
It has to make out a case that it is indeed limited by resources. If remuneration were to be allowed the state would not be limited by the resources available to it in the first place because enough kidneys would be available to meet the demand for transplants, and secondly because the funds presently available for dialysis could instead be used for transplants.
Consequently it is my opinion that the state is not fulfilling its obligation in sections 7(2) and 27(2) of the Constitution. The state is not respecting, promoting, protecting or fulfilling the kidney recipients' right to healthcare. Furthermore the state is not taking reasonable, legislative and other measures within its available resources to achieve the progressive realisation of the right to health pertaining to those in need of kidney transplants. The dire lack of available kidneys has been a problem for a number of decades, and the state should therefore provide the kidney recipients with an alternative option. They should be allowed to obtain a kidney in a constitutionally acceptable manner by having the state remunerate the kidney donor.

Conclusion
This article has sought to examine if the remuneration of kidney donors could be regarded as constitutionally acceptable. In my opinion all of the constitutional rights that have been examined have proved that they could be used in favour of the remuneration of kidney donors.
The right to life is regarded as the most important right of all the fundamental human rights because it is the foundation of all other rights. Without life no other right can exist. It was held in Makwanyane that the right to life implied that it had to be a life worth living. I have argued that the pain and suffering that accompany renal dialysis are such that the life of the patients is not a life worth living, but that a kidney transplant would give the patients a better life. The right to human dignity is regarded as interconnected with the right to life. According to Ackermann J the right to life incorporates the right to dignity. Human dignity and renal dialysis cannot coexist. It is also argued that the worldwide argument that a kidney donor's human dignity would be infringed if he received remuneration for his kidney donation is illogical. Furthermore the issue was also raised why the cruel and inhuman treatment of a criminal could be regarded as constitutionally unacceptable but the same treatment is regarded as constitutionally acceptable regarding an end-stage renal-failure patient. All persons are allowed to make decisions regarding their own bodies, as is guaranteed by the right to self-determination expressed in the Constitution. Thus, if a person is not allowed the option to decide whether or not he would like to be remunerated for his kidney donation, his right to self-determination is infringed. The remuneration of a kidney donor would have absolutely no effect whatsoever on the kidney donor's right to privacy. The donor would still be allowed to remain anonymous. Lastly, due to everyone's right to health care provided within the state's available resources, the state should allow persons to be remunerated for their kidney donation. Consequently, more end-stage renal-failure patients would have access to renal dialysis until a viable kidney became available, and it would always be possible for the state to provide kidneys within its available resources for the purpose of transplant operations.
If the state does not allow the remuneration of a kidney donor but merely leaves matters as they are at the moment, meaning that kidney donation is the only acceptable way to obtain a kidney, it could be argued that the state is infringing upon the rights to which a person is entitled by virtue of the Constitution.
Consequently, after careful consideration of the above it should be thought to be constitutionally acceptable to remunerate a kidney donor for his kidney. The sales of human kidneys are currently legally prohibited. I am strongly of the opinion that the legislation of kidney sales in a constitutionally acceptable manner would improve the Phillips v De Klerk 1983 TPD (unreported) Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria Communication 155/96