I. Introduction
Former Canadian Minister of State David Kilgour and I wrote a report on organ sourcing in China released first June 2006 and, in a second version, January 2007 under the title "Bloody Harvest: Organ Harvesting of Falun Gong practitioners in China". In that report we concluded that between 2001 and 2006 China killed Falun Gong practitioners in the tens of thousands so that their organs could be sold to foreign transplant tourists. Falun Gong is an exercise regime with a spiritual foundation based on ancient Chinese traditions banned in 1999.
China has no national organized organ donation system, nor a law allowing organ sourcing from the brain dead, cardiac alive. There is a strong cultural aversion against both organ donations and organ sourcing from the cardiac alive. Nor does China have a national organ matching and distribution system. Organs for transplants almost exclusively come from prisoners, whether prisoners sentenced to death or Falun Gong practitioners.
Since the report was released, David Kilgour and I travelled to over forty countries and over seventy cities to seek to end the abuse we identified. Because of our travels and the publicity surrounding our report, we received much additional evidence relevant to the subject of our report. Some it was just more of the same. For instance, we continued to find new examples of Falun Gong practitioners who in Chinese detention were systematically blood tested while their co-prisoners who were not practitioners were not blood tested.
As well, categories of evidence relevant to the conclusion of our report but not previously considered need to be examined. The first task I have set myself is to consider a sampling of these new categories of evidence.
The initial response of the Government of China to the report David Kilgour and I wrote was propagandistic, without addressing the substance of the research. More recently, particularly in the last few months, the Government of China has come out with specific responses - by way of letter to the United Nations Rapporteur on Torture Manfred Nowak and also by way of DVD, interviewing some of the sources of our report. The second thing I want to do today is to evaluate these responses and re-assess our own conclusions in light of these responses.
Subsequent to our report, China changed both its death penalty and organ transplant laws. The combined impact was to cut down on transplant tourism to China. My third task is to address the extent to which abusive sourcing of organs from Falun Gong practitioners remains in light of these changed laws and their application.
II. New considerations supporting our conclusions
In what follows, there are set out a few new considerations supporting our original conclusions. The purpose here is not to write a third version of our report. There is no attempt at comprehensiveness. In fact, we have identified many more considerations than those listed here.
The point is rather just to provide a sampling to show that new evidence, new considerations support our original conclusion. And there is nothing in the other direction, undermining or throwing into question our original conclusion.
A. Death Row
One phenomenon we did not address in our previous reports was the fact and law of immediate execution in China. According to the Chinese Code of Criminal Procedure, the death penalty can be imposed in two different fashions, by immediate execution or with two year suspension. A death sentence with a two year suspension will never be carried out if the prisoner during the two years avoids committing another intentional crime.
Death sentence with immediate execution truly means, according to law, immediate. The time period of seven days is specified. The law says that the death sentence shall be carried out within seven days of the death sentence order1.
There is no system of clemency or pardon in China for those sentenced to death. The combination of the requirement of immediate execution and the absence of a clemency system means that, in principle, there is no death row. The jails should not have, if the law is being followed, prisoners sentenced to death and waiting to be executed.
The absence of a death row means that, in principle, there is no organ bank of prisoners sentenced to death. The reality of the law in China, here as elsewhere, is not always the same as the law as it reads on the page. However, compliance with the law, which, in spite of everything, does in China, at least occasionally, occur, works against the existence of an organ donor bank of prisoners sentenced to death. That means even that prisoners sentenced to death are an even less reliable a source of organs than our original reports envisioned.
B. Lanny's story
A former prisoner from China I interviewed in July 2008 told a chilling story. While in prison, the prisoner, whom I have given the pseudonym Lanny, was kept in various prison cells averaging twenty persons per cell. In over ten instances, one of his cell mates was a prisoner sentenced to death. He became familiar with the pattern of execution of these prisoners.
A few days before execution, a man in a white coat would come and extract a blood sample from the prisoner. The day of execution, four or five men in white coats with white gloves would arrive. The prisoner would be escorted away by the men in white. Outside waiting, visible through the prison windows, was an ambulance hospital van in white with a red cross.
In one case, when Lanny was in interrogation, he saw one of these death penalty inmates in an adjoining room with a needle with a syringe sticking out of his neck. The syringe was half full of liquid. An hour later the prisoner was still there, but the syringe was empty.
What Lanny learned from cell leaders was that prisoners sentenced to death were being organ harvested for transplants. Their date of execution was set by arrangement with a nearby hospital, arranged for when organs were needed. The money paid for the transplant was split fifty between the hospital and the prison guards. About the man with the needle in his neck, his cell leader, when he returned from interrogation, told him that the prisoner was being injected with an anaesthetic to make him numb and preserve his organs until they were harvested.
In November 2006, Lanny was transferred to cell 311 in Wu Xi Number 1, prison, Wu Xi City, Jiangsu province, near Shanghai from another cell in that same prison. Shortly after his arrival, the guards asked Lanny to sign a statement that prisoner Chen Qi Dong had died of illness. The guards wanted the statement to show the family.
Chen Qi Dong had been in cell 311 before Lanny arrived but died a few days before Lanny was transferred to that cell. Lanny never met him and refused to sign the statement about his cause of death. The others in the cell signed.
Cell 311 leader Wang Yao Hu as well as seven or other eight cell members, including Wang Shi Cun from Wu Xi and Shai Hai, told Lanny what had happened to Chen Qi Dong. Chen was a Falun Gong practitioner who refused to recant and insisted on continuing the meditation and Falun Gong exercises while in prison. Guards beat and tortured him for doing so.
In reaction to his mistreatment, Chen Qi Dong went on a hunger strike. The guards in turn force fed him by pouring congee down a tube jammed into his throat. But the congee was too hot and scalded his digestive system. Chen Qi Dong got a fever.
At this point, the man in white arrived and took a blood sample, a few days before Chen was taken from his cell. The day Chen left the cell for good, four men with white coats and white gloves came to fetch him. One of the prisoners in the cell, that day in interrogation, saw Chen in the next room, with a needle in his neck. Through a window, the prisoners in cell 311 could see waiting a white hospital ambulance van with a red cross. The cell leader told Lanny that Chen had been organ harvested.
During his stay in prison, Lanny heard of 2 or 3 other such cases, but without the detail he heard in the case of Chen. There was a similar pattern in these cases. A Falun Gong practitioner refused to recant and continued his meditation and exercises in prison. The guards beat and tortured the practitioner in response. The beating and torture got out of hand to the point where the practitioner was permanently injured. The guards, in order to remove any trace of their own misdeeds, arranged for the telltale evidence to disappear through organ harvesting of the practitioner.
The full statement of Lanny's story will be posted on the web site which hosts our report.
C. Chinese response
I later refer to three different ways in which the Chinese government has responded to our report. But there is much more. The three examples I have chosen are notable not only for their error, but also for their particularity. Most of the Chinese response is verbiage without content, denials without contradiction.
In the first version of our report our lack of knowledge of Chinese geography led us to misplace in the wrong provinces two cities in China to which our investigators had called. And that, in total, was it, the only mistakes large or small which we had made.
The report is now over two years old. The fact that over those two years, the report has survived the scrutiny of peer review and has not been contradicted in any way whatsoever, serves to validate the report. The sheer silliness and vacuity of the Chinese government response means that the government of China, in substance, has nothing to say in answer to our report.
The peer review to which I am referring is that of University of Minnesota Associate Director of the Program in Human Rights and Medicine Kirk Allison, of British transplant surgeon Tom Treasure, and of Yale University thesis student Hao Wang. They have all independently from us and each other confirmed the conclusions of the Report and supported its accuracy. These independent investigations are to be found at
www.organharvestinvestigation.net.
D. Kidney survivors
Kidneys are the most common organs transplanted. Everyone has two kidneys and can survive after donating one. Voluntary kidney donations are everyday occurrences around the world. But not in China.
David Kilgour and I met and talked to many organ recipients who went to China for their transplants and to the doctors in the countries of residence engaged in after care of these recipients. In none of these cases was there an identified surviving kidney donor. Nor have we ever met a person who donated a kidney in China.
Mainland Chinese media are full of puff pieces. Given the inability of the Chinese media to criticize their government, the puff piece is the emblematic composition of Chinese journalism. Organ transplants are no exception. There is a raft of Chinese stories boasting of transplant technology or specific transplants in this hospital or that. But, with the exception of immediate donor relatives of the recipient, we have yet to see one of these puff pieces identifying a willing donor as the source of the organ.
According to the official website of the Government of China, "no more than 4 percent of organ transplants are between relatives. In Western countries the ratio is 30 percent."2 And, donations of organs in China to non-relatives is an almost unheard of phenomenon.
One has to keep in mind that in China there is virtually no sourcing of organs from the brain dead, cardiac alive. A statement that there is no more than 4 percent of organ transplants between relatives is a statement that there is no more than 4 percent of organ transplants sourced from live donors, and likely less. The 4% figure is refers to transplants between relatives, not voluntary donations by relatives.
The mere fact that the recipient is an immediate family member of the donor does not automatically mean that the donor has freely consented to the donation. The donor could be a prisoner sentenced to death. It is likely that this is so for at least some donations, given the large number of death sentences and the fact that people in China can be sentenced to death for a wide variety of economic and political crimes.
Using official Government of China statistics, we can conclude that over 96% of organ transplants are sourced from prisoners killed for their organs. According to Deputy Health Minister Huang Jiefu, 95% of all organs for transplants come from prisoners. These prisoners are either sentenced to death or Falun Gong practitioners.
E. Methodology for determining sourcing
Before our report came out, the conventional wisdom amongst human rights organizations was that the sourcing of organs for transplants was prisoners sentenced to death. This conclusion goes back many years.
A Human Rights Watch Report from August 1994 provides a detailed analysis coming to the conclusion "that the bodies of executed prisoners are the source for many, in fact most of the organ transplant operations performed in China". The report relies on some documents and "a large body of anecdotal material". The report then lists some of this anecdotal evidence from sources who for reasons of personal safety cannot be identified except in general terms3.
If one compares the methodology, the quality of evidence and the Chinese government response, there is not much difference between our report and these early reports concluding that the sourcing of organs for transplants is prisoners sentenced to death. If evidence in the nineties pointing to the conclusion that organs were sourced from prisoners sentenced to death was found to be probative, evidence of that same quality pointing today to the conclusion that organs are sourced from Falun Gong practitioners should also be probative.
III. Chinese responses
The Government of China
has reacted to our report in five different ways, censorship, destruction
of the evidence, counter propaganda, intimidation and an attempt to
change the facts on the ground.
A. Censorship
Chinese authorities
did their best wherever we went to try to shut us up. Wherever
we went, the Chinese consulate, if they knew about the event, would
call up the local hosts urging cancellation, suggesting that hosting
the event would be considered an unfriendly act towards China and that
our event represented a security threat to the institution.
i) Melbourne
On a trip to Australia,
in August 2006, David Kilgour spoke on our report at a forum in Melbourne
hosted by Liberal Party member Victor Perton. The Melbourne Chinese
consulate sent a letter to all members of the Legislative Assembly asking
them not to attend the forum.
ii) Helsinki
Similarly, when I was
in Finland in September 2006 meeting with the Finnish parliamentary
human rights committee, their chair informed me that the Chinese embassy
had called, urging them not to meet with me. The chair replied
that embassy officials were welcome to meet separately with the committee,
but that the committee would nonetheless meet with me.
iii) Tel Aviv
I went to Israel to
speak on May 30, 2007 at a symposium on organ transplants at Beilinson
hospital near Tel Aviv. When I arrived in Israel on the Sunday
before the event, I was told that the Chinese embassy had asked Israeli
Foreign Affairs to cancel the event at which I was asked to speak.
The Foreign Affairs
Assistant Deputy Minister Avi Nir and the Health Assistant Deputy Minister
Boz Lev put the request to the Beilinson hosting hospital, which refused.
Foreign Affairs and Health then asked the hospital to withdraw the invitation
to me to speak even if the program continued. The hospital refused
that too.
Foreign Affairs and
Health then asked the hospital to withdraw the invitation to Roy Bar
Ilan, a Falun Gong practitioner, to be part of the closing panel.
This the hospital did, even though the program, as advertised even on
the day of the event included his name.
iv) San Francisco
I was scheduled to speak
5 April 2008 at San Francisco State University. The organizers
of this event bought a display ad in the San Francisco Chronicle advertising
the event, an ad the Chinese consulate in San Francisco could not miss.
Shortly before the event, the University cancelled the venue, citing
security concerns.
The organizers at the
last minute rescheduled the event to the Nikko Hotel. The
University put up signs saying the event, not just the venue, had been
cancelled. The organizers placed helpers at the University to
redirect people.
v) Gold Coast
On 7 July 2008, organizers
hired a theatre at Bond University in the Gold Coast for a Chinese human
rights forum August 4 where I was scheduled to speak. The person
taking bookings was new and had everything cleared from superiors.
The University said they would notify all their students and staff about
the forum internally. The organizers were also allowed to put up posters
around the campus promoting the event for 4 August.
On 28 July, three weeks
later, and one week before the event, the organizers
received an e-mail that said in its entirety:
"This is to
advise that the venue is no longer available for your event. A credit
has been processed against your credit card."
Vice-Chancellor Robert
Stable, when one of the organizers managed to reach him, said that he
and the Committee met and decided the event was political and that they
don't allow political events from outside. No matter what was said,
he didn't care and said that the decision was final. The event
was rescheduled to the Life Education Centre in Broadbeach.
In the case of San Francisco
State University and Bond University, I do not know that the local Chinese
consulates had contacted the universities asking them to cancel the
events. But I do know that these consulates would have been derelict
in what they considered to be their duty if their had been no such contact.
Moreover the substantial delays between the arrangements and the cancellations
at both universities as well as the wide publicity the planned forums
were given meant that the local Chinese consulates likely would have
been aware of them.
To me, whether acting
on a request from the Government of China, a Chinese student front organization
or their own initiative, it is appalling that independent institutions
would engage in such a blatant interference with freedom of expression.
I find incomprehensible the suggestion that a talk I would give could
pose a security threat to a university.
Nor is a talk about
human rights a political speech. Politics are particular; human
rights are universal. Politics manifests conflicting values; human
rights standards are consensual.
The Communist Party
sees anyone who objects to their repression as posing a security threat
to them, as opposing them politically. But a university surely
should not share that view. I do not become a security threat
or a political advocate simply because I decry human rights violations
in China.
B. Evidence destruction
A second Chinese government
reaction to our report was destruction of the evidence on which our
report was based. Much of the evidence in our report comes from
the Government of China itself, from hospital web sites and Chinese
medical research. The Government of China has been systematically
taking down or altering the sites on which we have relied.
We have electronically
archived all our source material. Any one who wants to see what
we saw can go to the links in our report and see our source material.
However, this alteration and destruction of the original sources means
that updating our report becomes difficult. We know what the situation
was at the time the report was written. However, we know
less about the situation today because the types of information we got
yesterday are not available today.
C. Counter Propaganda
A third Chinese government
reaction to our report was counter propaganda. The counter propaganda
either misrepresents our report or denies the sources without foundation.
Here are a few notable examples.
i) A claim of rumour
At the symposium on
organ transplants at Beilinson hospital near Tel Aviv where I spoke
on May 30, 2007, the Chinese Embassy to Israel circulated a statement
at the symposium that the report David Kilgour and I wrote on organ
harvesting of Falun Gong practitioners contains:
"verbal evidence
without sources, unverifiable witnesses and huge amount of unconvincingly
conclusive remarks based on words like "probably", "possibly",
"maybe" and "it is said", etc. All these only
call into question the truth of the report."
Yet, all one has to
do to is to look at the report to see that every statement we make in
our report is independently verifiable. There is no verbal evidence
without sources. Where we rely on witnesses we identify them and
quote what they say.
The report is on the
internet and is word searchable. Anyone who searches it can see
that the words "probably", "possibly", "maybe"
and the phrase "it is said" are not used in our report, not
even once.
ii) Shi Bingyi
One basis for our conclusion
that Falun Gong practitioners were the primary source of organs for
transplants was the large increase in transplants coincident with the
start of persecution of the Falun Gong. Yet, the only other significant
source of organs for transplants, prisoners sentenced to death, remained
constant.
To document the overall
increase in transplants, our report cited Shi Bingyi, vice-chair of the
China Medical Organ Transplant Association. We indicated that
he said that there were about 90,000 transplants in total up until the
end of 2005.
Yet there were approximately
30,000 transplants done in China before the end of 1999 and 18,500 in
the six year period 1994 to 1999 inclusive. That meant that transplants
went up from 18,500 in the six year period prior to the persecution
of the Falun Gong to 60,000 in the six year period after the persecution
of the Falun Gong began. Since the death penalty volume was constant,
that left 41,500 transplants in the six year period 2000 to 2005 where
the only explanation for the sourcing was Falun Gong practitioners.
UN rapporteur on torture
Manfred Nowak asked the Chinese government to explain the discrepancy
between organs available for transplants and numbers from identifiable
sources. The Chinese government, in a response sent to Professor
Nowak by letter dated March 19, 2007 and published in the report of
Professor Nowak to the UN Human Rights council dated February 19, 2008,
that
"Professor
Shi Bingyi expressly clarified that on no occasion had he made such
a statement or given figures of this kind, and these allegations and
the related figures are pure fabrication."
Moreover, the Government
of China, lest there be any doubt, asserted that
"China's annual
health statistics are compiled on the basis of categories of health
disorder and not in accordance with the various types of treatment provided"4
Shi Bingyi was interviewed
in a video documentary produced by Phoenix TV, a Hong Kong media outlet.
That video shows Shi Bingyi on screen saying what the Government of
China, in its response to Nowak, indicates he said, that the figures
we quote from him he simply never gave. He says on the video:
"I did not
make such a statement because I have no knowledge of these figures I
have not made detailed investigation on this subject how many were carried
out and in which year. Therefore I have no figures to show. So I could
not have said that."
Yet, the actual source
of the quotation is footnoted in our report. It is a Chinese source,
the Health News Network. The article from the Network is posted
on the official website for transplantation professionals in China,
<www.transplantation.org.cn>. The text, dated 2006-03-02,
states, in part, in translation:
"Professor
Shi said that in the past 10 years, organ transplantation in China had
grown rapidly; the types of transplant operations that can be performed
were very wide, ranging from kidney, liver, heart, pancreas, lung, bone
marrow, cornea; so far, there had been over 90,000 transplants completed
country-wide; last year along, there was close to 10,000 kidney transplants
and nearly 4,000 liver transplants completed."
Though the Government
of China has taken down many of the citations in our report, this citation
remains. The original source of the information remains available
within China through an official website source.
Moreover, the information
in this article continues to be recycled in Chinese publications.
The official web site of the Minister of Science and Technology of the
People's Republic of China posts a newsletter of June 20, 2008 at <http://wwww.most.gov.cn>
which states:
"Up to date,
China has performed some 85,000 organ transplants, only next to the
United States in number. In recent years, China performed organ
transplants on more than 10,000 patients a year...Liver transplants
have exceeded 10,000 in number... Heart transplants went over 100 in
number..."
The number of 90,000
transplants in 2006 and 85,000 transplants in 2008 do not match and
call for an explanation only those who provide the statistics can give.
What is striking about the later article, aside from the statistical
mismatch, is that it flies in the face of the official Chinese statement
to Professor Nowak that China's health statistics are compiled on the
basis of categories of health disorder and not in accordance with the
various types of treatment provided.
So what we have is a
statement from Shi Bingyi on an official Chinese web site which remains
extant to this day, a statement which Shi Bingyi publicly denies ever
having said. Moreover, despite the continued presence on
this official website of a statement showing that Shi Bingyi says what
we wrote he said, the Chinese government accuses us of fabricating the
words we attribute to Shi Bingyi.
Neither the Government
of China nor Shi Bingyi claim that Health News Network has misquoted
or misunderstood what Shi Bingyi said. There has been no effort
to hide or mask or take down from the internet the publicly posted article
of the Health New Network where Shi Bingyi is quoted. The continuation
of this article on an official Chinese web site at the same time as
China is removing from the internet so much other information about
organ transplants which we used to come to our conclusions amounts to
a continuation to assert what is to be found in this article.
This whole episode is
reminiscent of an exchange in the 1933 Marx Brothers movie Duck Soup.
Mrs. Teasdale (Margaret Dumont) turns round in her bedroom and sees
Chicolini (Chico Marx), who is disguised to look like Rufus T. Firefly
(Groucho Marx), President of Freedonia. Thinking that Chicolini
is the President, Mrs. Teasdale says to Chicolini: "Your
excellency, I thought you left." Chicolini replies: "Oh no.
I no leave." Mrs. Teasdale says: "But I saw you with my own
eyes." Chicolini answers: "Well, who are you going to believe,
me or your own eyes?"
iii) Lu Guoping
If the statement from
Shi Bingyi is strange, the statement from Lu Guoping is stunning.
One trail of evidence which led to our conclusion of organ harvesting
was investigator phone calls. Our investigators called hospitals
throughout China, pretending to be relatives of patients who needed
transplants, asking the hospitals if they had organs from Falun Gong
practitioners for transplant. The justification for the questions
was that, since Falun Gong is an exercise regime, the Falun Gong practitioners
would be healthy and their organs would be healthy. Our callers
got recorded admissions throughout China that hospitals did have Falun
Gong organs for sale.
One such admission came
from Lu Guoping at Minzu Hospital of Guangxi Autonomous Region.
He said, on a recording, that his hospital used to have organs from
Falun Gong practitioners, but no longer has them. He referred
the caller to a hospital in Guangzhou and assured the caller that this
hospital had Falun Gong organs. Here are some of the exchanges:
Q: Then they [the
hospital in Guangzhou to which the caller was referred] use organs from
Falun Gong practitioners?
Q: It is said that
the organs from Falun Gong practitioners are relatively healthy and
better. Do they use this kind as well?
A: Right, right,
right. Usually the healthy ones are chosen.
Q: What I mean is
that the organs from Falun Gong practitioner are better. Do they use
this kind as well?
Q: ...what you used
before, were they from detention centres or prisons?
Q: Oh, prisons.
And it was from healthy Falun Gong practitioners, the healthy Falun
Gong right?
A: Right, right,
right. We would choose the good ones, because we will assure the quality
of our operations.
A: Right, right,
right. We must select it."
The Phoenix TV documentary
which interviewed Shi Bingyi also interviewed Lu Guoping. In this
documentary, Lu Guoping acknowledges having received the call from our
caller. He confirms that he referred our caller to a hospital
in Guangzhou. He acknowledges that the caller asked whether that
hospital used organs from Falun Gong practitioners. What changes
in the documentary is the answer he said he gave. In the TV interview,
he says:
"I told her
I was not involved in the surgical operations and had no idea where
the organs come from. I told her I could not answer her questions.
She then asked me whether these organs come from prisons. I replied
no to her in clear-cut terms"
On the video, Dr. Lu
is presented with a partial transcript of the call made to him found
in our report. He reacts by saying:
"The record
of the phone call does not conform to the truth. Many parts of it have
been distorted or mutilated. The report says that when I was asked where
the organs removed from Falun Gong people came from, prisons or detention,
houses I said they came from the prisons. But this was not my answer....The
report also says that when the person who called me asked whether we
have to go to the prison to select body organs I answered yes and added
we have to go there to make the choice. This question was actually not
raised at all then."
There is no indication
in the Phoenix TV documentary that we have a recording where Dr. Lu
says in his own voice the words attributed to him in our report.
Nor does either the doctor or the interviewer make any attempt to explain
how we could possibly have got the voice of the doctor on a recording
saying what he denies saying, interspersed seamlessly with what he admits
saying, if he did not say what he denies saying. The suggestion
left by the documentary is that we have altered a transcript.
Because there is no acknowledgement of a recording, there is no suggesting
we have altered the recording.
So here we have on our
recording an admission from a doctor that he used to go to a prison
to select Falun Gong practitioners for their organs. He does not
just say that someone else did this. He says that he used to do
this himself. Moreover, we have a further admission that
the voice we have on our recording is the voice of the very person our
recording says he is. This is as close to a smoking gun as we
are ever likely to get.
D. Threats
At Columbia University,
an organization titled the Columbia University Chinese Students and
Scholars Association had posted this threat on its web site in April
2007 when I was speaking there on our Report: "Anyone who offends
China will be executed no matter how far away they are".
When I spoke at the
forum in Broadbeach, Gold Coast, Australia August 4, 2008, the forum
was connected through the internet to participants in China, over 150
in total. The local as well as the internet participants asked
questions after the formal presentation was over. One of the internet
participants was a Chinese government police official. This is
the question, in translation, he asked me:
"Are you afraid
of death? You are brutally interfering in our Party's internal policies.
Are you afraid of our revenge? Our revenge against you, we'll take revenge
against you, are you not afraid of that?"
IV. Recent changes
A new Chinese law on
transplants in May 2007 required that transplants be performed only
in registered hospitals and prohibited the sale of organs. Similar
laws had been passed at least twice before. But this law, unlike
previous laws, appears to have had an effect. Foreign transplant
tourism has been curtailed. We say this not because of what the
Government of China says but because of the evidence we have been getting
from those outside China seeking transplants and their doctors.
As well, the Chinese Medical Association signed an agreement in October
2007 with the World Medical Association to oppose the sourcing of organs
for transplants from prisoners except for prisoners donating organs
to their immediate family members.
What is one to make
of these changes? Can we now say that the problem has now been
solved? I would suggest not for these reasons.
i) The Chinese Medical
Association (CMA) is not a governmental entity. Its promise to avoid
to avoid organ sourcing from prisoners indicates the good will of some
Chinese medical doctors. However, it is not binding on the government,
and is not binding on doctors in China who are not members of the CMA.
The CMA cannot make decisions for the government. The Government sets
the rules for associations and not vice versa. The practice of sourcing
organs from prisoners, whether prisoners sentenced to death or Falun
Gong practitioners, was and is tolerated by the Chinese government.
Only the Chinese government that can stop this practice.
ii) Even if it had been
the Government of China which had entered into the agreement instead
of the CMA, it is questionable whether the agreement would be effective.
The Chinese government has issued over time issued several laws and
regulations prohibiting the selling of organs without the consent of
the source. The very repetition of such laws is evidence that these
laws are not effective.
iii) The Chinese government
has had a history of duplicity in this field. An example is the
case of Dr. Wang Guoqi. On June 27, 2001, Dr. Wang Guoqi testified before
the Subcommittee on International Operations and Human Rights of the
US Congress, that organs for transplants are sourced from prisoners.
The Chinese government called him a liar. This position was held until
2005, when for the first time Chinese officials admitted publicly that
they indeed harvested organs from prisoners.
iv) Liu Zhi, of the
CMA's international department, said that the agreement with the WMA
has no legal effect. He expressed the hope that the agreement
would influence Chinese 500,000 doctors and government decisions.
This statement, in our view, minimizes the effect the agreement might
have. At the very least, the CMA can insist that its own members
comply with the terms of the agreement as a precondition for continued
membership in their association. The fact that the CMA has not
done this indicates a less than wholehearted support for the agreement.
v) The agreement does
not address the issues of onus and standard of proof. In many
cases in China, doctors are supplied an organ and told a source, but
make no independent determination whether what they are told about the
source is accurate or not.
In this regard, the
Professional Code of Conduct of the Medical Council of Hong Kong is
instructive. One principle is that, "if there is doubt"
as to whether the consent is given freely or voluntarily by the organ
donor, the profession should have nothing to do with the donation.
A second principle is
that the onus is on the transplant professional to ascertain the status
of the donor. The professional is not acting ethically as long
as he or she makes no inquiries or only cursory ones. The transplant
professional, after investigation, has to be satisfied beyond any doubt
before participating in a transplant operation that consent was given
freely or voluntarily by the donor.
The agreement with the
CMA would not mean very much if CMA doctors could claim respect for
the agreement simply by turning a blind eye to practices around them.
The agreement needs to ensure that Chinese transplant professionals
are respecting the substance of the agreement as well as its form.
vi) There is no verification
system in place to determine whether or not the agreement with the CMA
is being kept. Such a verification system needs to be independent from
the Government of China and the CMA itself. There has be transparent
documentation of the sources of organs used by CMA doctors in transplant
operations. The CMA should make accessible to the World Medical
Association and human rights organizations such as Amnesty International
and Human Rights Watch, as well as human rights lawyer's organizations,
transplantation numbers which involve its members, donor names and the
names of the immediate family members who may receive transplants from
prisoners.
Regrettably, right now
in China there is no publicly available information on numbers of convicts
sentenced to death and executed. This information should be publicly
available. That would, one would think, be a simple task, now
that the Supreme People's Court In Beijing must approve all death sentences.
The CMA should ask the Government of China to make this information
available.
vii) In China,
transplant surgery has become essential for financing the medical profession
and hospitals. A dramatic decrease of transplant surgeries would impose
financial burden on the health care system. Without an increase
in the Government funds to the health care system, it is unlikely that
hospitals will cease relying on transplant for money. While sourcing
of organs and payment for organs are conceptually distinct, they are
linked in fact. The need for funds pushes doctors and hospitals
to increasing transplant numbers and using historically available sources,
prisoners.
viii) The CMA agreement
does not bind military doctors who are not members of the CMA and military
hospitals. Yet, organ recipients recount that military doctors
and hospitals are heavily involved in organ transplant surgery.
ix) As noted earlier,
a donor can be both a relative and a person sentenced to death.
The immediate family member exception is found in the World Medical
Association's Policy on Human Organ Donation and Transplantation.
However, it is not to be found in the ethical principles of the Transplantation
Society. In our view, the prohibition without exception
which the Transplantation Society has adopted is preferable to the prohibition
with the immediate family member exception which the World Medical Association
has adopted. The case of China highlights why this exception is
problematic.
x) The agreement with
the CMA does not change the Chinese infrastructure for organ transplants.
China still does not have a public organ donation program. There
is still no law allowing for organ sourcing from the brain dead but
cardiac alive. The implementation of the agreement with the CMA,
in the absence of an organ donation system and a brain dead law, would
mean that the organs transplantation in China would be almost non-existent,
an unlikely result.
xi) There is still no
national organ distribution or transfer or sharing or matching system
in China. As the result, the wastage of organs from those who
are organ sources continues.
xii) It used to be that
the death penalty could be approved only by regional courts. Since
January 2007, it has to be approved by the Supreme Court. This shift
in procedures has reduced substantially the pool of prisoners sentenced
to death, in the estimate of Amnesty International by about half.
This change requires increased reliance on the Falun Gong practitioner
pool.
xiii) The decrease in
transplant tourism has been gone hand in hand with an increase in transplants
to patients within China. We found, before the new law came into
force, when the Chinese focus was on the foreign market, that waiting
times for foreign customers were much shorter than waiting times for
Chinese nationals. Chinese nationals waiting for transplants were
miffed by this preferential treatment to foreigners.
According to Chinese
official sources, there are 1.5 million people who in China who suffer
from organ failures and need transplants every year5. The Ministry of Health of the Government
of China announced that from June 26, 2007 Chinese patients would be
given priority access to organ transplants over foreigners6.
xiv) Transplants are
still happening with lightning speed. For instance, an article
entitled "Life-Saving Kidney Lands in Island-City" from December
27, 2006, published in Peninsula Metropolitan News in Qingdao City,
Shandong Province reported that only 16 days elapsed between a patient
having been diagnosed with uremia and completion of a kidney transplant.
xv) Even if the sourcing
of organs for transplants from Falun Gong practitioners were to cease
immediately, or had ceased yesterday, that is not the end of the problem.
The harvesting that did take place was a crime against humanity.
Crimes against humanity call out for redress. Perpetrators of
crimes against humanity must be brought to justice.
xvi) The persecution
of the Falun Gong continues. Of that there can be no doubt. Repression
of the Falun Gong is official Chinese policy. That policy has
not changed.
To be specific then
China should have an
organ donation system.
China should have a
national organ matching and sharing distribution system.
China needs a
law allowing for organ harvesting from the brain dead cardiac alive.
Organ sourcing
in China from prisoners should stop.
Those involved
in organ harvesting from Falun Gong practitioners should be brought
to justice.
The persecution
of the Falun Gong should stop.
David Matas is an international
human rights lawyer based in Winnipeg, Manitoba, Canada.
