A. The problem
China sources virtually
all transplants from prisoners. Deputy Health Minister Huang Jeifu,
speaking at a conference of surgeons in the southern city of Guangzhou
in mid-November 2006, said: "Apart from a small portion of traffic
victims, most of the organs from cadavers are from executed prisoners."
In practice, sourcing
of organs from prisoners is done without consent. Deputy Health
Minister Huang Jeifu, in his November speech, said "too often organs
come from non consenting parties".
Organs harvested without
consent are then sold. In his November speech, Huang Jeifu added
that "Under-the-table business must be banned" and that "too
often organs ... are sold for high fees to foreigners."
Until recently China
had no organ donation system. The Government announced in August
2009 that it was launching such a system, but only as a pilot project
in ten locations. The mere announcement of the launch of
such a system does not in itself create a substantial new organ donor
In addition, there is
a Chinese cultural aversion to organ donation. The establishment
of a fully functioning donation system does not in itself change this
The prisoners in China
who are the source of organs are two sorts, prisoners sentenced to death
and then executed and Falun Gong practitioners. Falun Gong is
a set of exercises with a spiritual foundation.
The practice of Falun
Gong began in 1992, initially with official encouragement, and spread
rapidly throughout China. By 1999 there were more practitioners than
there were members of the Communist Party. At this point, the
Party took fright at its popularity and banned it.
Those who continued
the practice were arrested and asked to recant. Those who refused were
tortured. Those who recanted after torture were released.
Those who still refused disappeared into the Chinese labour camp system.
There are millions of such people in labour camps in China.
China has the death
penalty for a large number of offences, including strictly political
and economic crimes where there is no suggestion that the accused has
committed a violent act. Nonetheless, practising Falun Gong is
not a capital offence.
Some detained Falun
Gong practitioners have been prosecuted and convicted for vague offences
such as disrupting social order. The typical sentence is three
years. Yet, even those who are convicted and sentenced are not
released after expiry of their terms unless they renounce Falun Gong.
In spite of the large
number of executions of prisoners sentenced to death, the organs of
these prisoners are insufficient to explain the much larger number of
transplants. David Kilgour and I, in a report released in a first
version July 2006 and in a second version January 2007, concluded that
this sourcing of organs which is unexplained by the death penalty is
explained by the massive, disappeared Falun Gong population in the Chinese
labour camp system.
Our report is available
on the internet. The Government of China rejects our conclusions.
Whether one agrees with
the conclusions of our report or not, it is incontestable that the source
of the overwhelming number of organs in China for transplants is prisoners.
The debate we have with the Government of China is not whether organs
are sourced from prisoners, but only what sort of prisoners. Yet,
ethically, the sourcing of organs for transplants from any sort of prisoners
So organ transplants
in China present a constellation of problems - sourcing without consent,
sale of organs, sourcing from Falun Gong practitioners, and sourcing
generally from prisoners. How do we stop these abuses from continuing?
Asking the Government
to stop sourcing organs from Falun Gong practitioners precipitates from
the Government both denials and verbal attacks on Falun Gong.
While eliciting this bluster may seem, at first blush, pointless, it
does, in my view, serve a purpose. Noting Chinese Communist abuses
makes the point to the Chinese Government that you can lie, but you
can not hide.
The Chinese government
may think that, by verbally attacking the practice of Falun Gong, they
are rebutting charges of human rights violations inflicted on practitioners.
In reality, these responses accomplish the opposite. The verbal
attacks are themselves evidence of the human rights violations.
Grave human rights abuses
are invariably preceded and accompanied by incitement to hatred against
the victim group. Marginalization and dehumanization are preludes
and partners to torture and killings. The very vituperation accompanying
Chinese Communist denials helps to establish all on its own that these
abuses are happening.
As well, the brick wall
of rhetoric the Chinese government throws up in response to concerns
about violations of human rights against Falun Gong is not in itself
a reliable predictor of Chinese government behaviour. Here, as
elsewhere, the Government of China says one thing and does another.
While the persecution of Falun Gong has not alleviated in the slightest
and indeed has even increased since our report has come out, there have
been, since the first version of our report came out, substantial changes
in the Chinese law and practice of organ transplants - discussed
in the next section.
What we are left with,
if we put to one side the problem the Government of China denies (sourcing
from Falun Gong practitioners), is the sourcing of organs from prisoners.
The Government of China both admits and decries that sourcing.
Deputy Health Minister Huang Jeifu, at the time of the announcement
of an organ donor pilot project in August 2008, stated that executed
prisoners "are definitely not a proper source for organ transplants".1
The sourcing of organs
from prisoners is, to be sure, a problem for China. But it is
also a problem for the rest of the world. The question this sourcing
poses is not just what China will do, but also what the rest of the
world will do.
B. The law in China
The Chinese law on transplants
enacted in 1984 contemplated harvesting organs from prisoners "who
volunteer to give their dead bodies or organs to the medical institutions"2.
It even contemplated involuntary donations from "uncollected dead
bodies or the ones that the family members refuse to collect."3.
On July 1st, 2006, a
law banning the sale of organs came into effect4.
Organ-harvesting of the cardiac alive is illegal in China even when their
brains are dead. The original proposal for the law change about
organ transplants which took effect on July 1, 2006 included a provision
to legalize organ harvesting from the brain dead. But the new
law in the end did not contain this provision. The official explanation
was, again, cultural aversion, that the traditional Chinese attitude
towards death is considered to be the moment when a person's heartbeat
and breathing cease5.
The Chinese Organ Transplant
Ordinance of May 2007 provides that organ donation should be voluntary
and unpaid6. The law opposes force, deception and inducement
for donation. Where a person has not indicated before death an
intention to donate his or her organs, the family - spouse, adult children,
and parents jointly - can agree to donate the dead person's organs.
The 2006 and 2007 laws
are defective in at least two ways. In context, the bans against
payment are meaningless. Neither Falun Gong practitioners nor
prisoners sentenced to death had ever been paid for their organs. Nor
had their surviving relatives. The money patients paid for the
organs of prisoners had been going to hospitals and prisons, not to
the sources of organs or their surviving relatives.
The new laws do not
prevent patients from paying hospitals for transplants. Indeed,
the 2007 law specifically requires that the organ recipient be required
to pay costs associated with the transplant7. As long as
the money paid the hospital does not reach the donor, payment for organ
transplants is legal.
Second, neither the
2006 nor the 2007 law repeals or supersedes the 1984 law. A standard
principle of statutory interpretation is that the particular takes precedence
over the general. The 1984 law refers specifically to prisoners
("condemned criminals"). The 2006 and 2007 law do not.
So the principle of involuntary donations from "uncollected dead
bodies [of condemned criminals] or the ones that the family members
refuse to collect" remains.
Before our report came
out, organs from non-consenting Chinese prisoner donors had been on
sale to transplant tourists from around the world. A price list was
posted on an official Chinese web site.
The Ministry of Health
of the Government of China, separately from the two laws, announced
that from June 26, 2007 Chinese patients would be given priority access
to organ transplants over foreigners8. The announcement
also banned all medical institutions from transplanting organs into
foreign transplant tourists. This policy appears to have had an
effect. Foreign transplant tourism has been substantially curtailed.
However, all that this
change is has done is to alter the category of recipients, from overseas
to inland patients. The number of transplants, after an initial
dip, has remained constant.
The dip in transplant
numbers was the result of a decrease in the numbers of person sentenced
to death and then executed. This decrease in the volume of death
penalty cases was in turn the result in a change in Chinese criminal
procedures, the shift on January 1, 2007 from required approval of the
death penalty by regional courts, the Higher People's Courts, to approval
by the central Supreme People's Court.
When transplant volumes
returned to traditional levels despite the continuing lower death penalty
volumes, it meant that the health system had managed to shift organ
sourcing from death penalty cases to Falun Gong practitioners, increasing
the already large volume of sourcing from these practitioners.
So, in terms of sourcing, even with the new law forbidding the sale
of organs to foreigners, matters are worse, not better.
B. Ethics in China
Chinese transplant professionals
are not subject to any ethical strictures separate from the laws which
govern their work. Many other countries have self governing transplant
professions with their own disciplinary systems. Transplant professionals
who violate ethical guidelines can be ejected from their profession
by their colleagues without any state intervention.
For transplant professionals
in China, there is nothing of the sort. When it comes to transplant
surgery, as long as the state does not intervene, anything goes.
There is no independent supervisory body exercising disciplinary control
over transplant professionals independent of the state.
C. The law abroad
The sort of transplants
in which the Chinese medical system engages - sourcing from prisoners
- is illegal everywhere else in the world. But it is not
illegal for a foreigner in any country to go to China, benefit from
a transplant which would be illegal back home, and then return home.
Foreign transplant legislation everywhere is territorial. It does
not have extraterritorial reach.
Many other laws are
global in their sweep. For instance, child sex tourists can be
prosecuted not just in the country where they have sex with children,
but, in many countries, back home as well. This sort of legislation
does not exist for transplant tourists who pay for organ transplants
without bothering to determine whether the organ donor has consented.
There have been some
legislative initiatives. For instance, Belgian Senator Patrik Vankrunkelsven
in December 2006 proposed an extraterritorial criminal law which would
penalize patients who receive transplants abroad where they have reason
to believe the organs are seized without consent of the donor, where
the donors are prisoners condemned to death or where the payment is
so large that it can be presumed that a profit is being made9.
A Senate working group to which the proposed legislation was referred
in February 2007 approved in principle legislation to reduce transplant
tourism without pronouncing on the specifics of such legislation.
The proposed legislation died on the order paper when Parliament was
dissolved in May 2007.
E. Ethics abroad
Society, an international non-governmental organization, opposed the
transplantation of organs from prisoners sentenced to death, but only
in July 2006. Their statement said:
the restrictions in liberty in a prison environment it is impossible
to ascertain whether prisoners are truly free to make independent decisions,
and thus an autonomous informed consent for donation cannot be obtained.
Therefore, The Transplantation Society is opposed to any use of organs
from executed prisoners."
The Society in November
2006 then issued a letter to all its members about interaction with
China on transplants. The Society says about the presentation
of transplant studies from China at Transplantation Society meetings:
of studies involving patient data or samples from recipients of organs
or tissues from executed prisoners should not be accepted".
The November letter
treats collaboration on studies the same way. It states:
with experimental studies should only be considered if no material derived
from executed prisoners or recipients of organs or tissues from executed
prisoners is used in the studies."
The trouble with this
policy is that it does not address questions of onus and standard of
proof. In light of the overwhelming use in China of organs from
prisoners for transplants, one has to presume, unless there is proof
to the contrary beyond any doubt, that organs for transplants in China
come from prisoners. Yet, The Transplantation Society policy does
not require this sort of proof.
The World Medical Association,
which has also addressed this issue, has even weaker standards. The
Association adopted a policy statement on organ donation and transplantation
in October 2000, revised in October 2006 which stated that
and other individuals in custody are not in a position to give consent
freely and can be subject to coercion, their organs must not be used
for transplantation except for members of their immediate family."
So there is an exception
for immediate family members.
In a news release dated
5 October 2007 the World Medical Association announced at the annual
General Assembly in Copenhagen an agreement with the Chinese Medical
Association that organs of prisoners and other individuals in custody
must not be used for transplantation except for members of their immediate
family. This agreement is problematic for a number of reasons.
It has no enforcement or even compliance assessment mechanism.
The Government of China has distanced itself from the agreement.
And the exception for immediate family members, especially in a country
with such a wide array of death penalty offences, should not exist.
Neither David Kilgour
nor I is a transplant professional. Transplant technology presents
a wide variety of issues beyond the sourcing of organs in China from
Falun Gong practitioners.
I am a lawyer practising
in Winnipeg, Manitoba, Canada in immigration, refugee and international
human rights law. David Kilgour is a retired Parliamentarian,
a former Minister of State for Asia and the Pacific. Our specific
contribution to the transplant debate is our report on the killing of
Falun Gong for their organs.
Because we are human
rights advocates as well as researchers and writers, we have both advocated
the ending of this awful abuse. That abuse would end if the persecution
of Falun Gong would cease, something in which the Government of China
seems resolutely uninterested. It would also cease if the Government
of China stopped sourcing organs from prisoners, something the Government
of China has endorsed as a long term goal.
Ending the organ sourcing
in China from prisoners, but maintaining the persecution of Falun Gong
leaves other problems - the torture, arbitrary detention, disappearances,
and arbitrary execution of these practitioners. But at least the
killing of Falun Gong practitioners for their organs would stop.