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 supply.  

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 aversion.  

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 is improper.  

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

The Transplantation Society, an international non-governmental organization, opposed the transplantation of organs from prisoners sentenced to death, but only in July 2006.  Their statement said:

"Because of 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:

  "presentations 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:

"Collaboration 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

"Because prisoners 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." (paragraph 16)

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. 

F. Conclusion

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.