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 Whistleblowers Need Protection


Organ harvesting of Falun Gong Practitioners in China: An Update

By David Matas
Remarks prepared for the Transplantation Society Congress, Sydney Australia
August 14, 2008

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

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, <>. 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 <> 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: Didn't you use Falun Gong practitioners' organs before?

    A: Now it has changed from before.


    Q: Then they [the hospital in Guangzhou to which the caller was referred] use organs from Falun Gong practitioners?

    A: Right, right, right.


    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?

    A: Right, right, right.


    Q: ...what you used before, were they from detention centres or prisons?

    A: From 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.

    Q: That means you choose the organs yourself?

    A: Right, right, right.


    Q: ...Usually how old is the age of the organ supplier?

    A: Usually in their 30s.

    Q: In their 30s. Then you will go to the prison to select yourself?

    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.

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