In China, organs for transplants are sourced almost exclusively from prisoners, a basic violation of ethical standards. The Government of China has openly admitted this sourcing. According to Deputy Health Minister Huang Jiefu speaking in July 2005, 95% of all organs for transplants come from prisoners1.
The World Medical Association Statement on Human Organ Donation and Transplantation provides:
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.
The Government of China denies this sourcing of organs from Falun Gong practitioners. The debate David Kilgour and I have with the Government of China is not whether organs are coming from prisoners. It is only a debate about what sorts of prisoners are the sources of organs3. However, ethical standards for organ sourcing do not distinguish amongst types of prisoners.
The Chinese Medical Association is a member of the World Medical Association. Its membership continues despite this uncontested, unethical sourcing. Why?
Two years ago, at the International Association of Law and Mental Health Congress, Padua, I expressed concern that the Chinese Medical Association remained a member of the World Medical Association. I asked why the World Medical Association now could not behave as the World Psychiatric Association had behaved in the 1980's in the face of Soviet psychiatric abuse. The Soviets withdrew from the World Psychiatric Association in 1983 when it faced almost certain expulsion.
I expressed my concern not only to the previous session of this Congress, but also directly to the World Medical Association. I sent my Padua text both to the headquarters of the World Medical Association and to all the individual country members of the Association.
David Kilgour and I are human rights activists as well as human rights researchers and writers. Once we came to the conclusion that Falun Gong practitioners were being killed for their organs, we travelled around the globe to try to put an end to that abuse. In the course of our travels, we met with parliamentarians, government and intergovernmental officials, patients who had gone to China for transplants, victims of Chinese oppression who had managed to get out of Chinese jails and out of China, academics, researchers and transplant professionals.
Wherever, whenever we met members of the medical profession, we raised the question I had raised in Padua. Why is the Chinese Medical Association still a member of the World Medical Association?
Three months after the Padua Congress, the World Medical Association moved. 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. The Chinese Medical Association agreed that organs of prisoners and other individuals in custody must not be used for transplantation except for members of their immediate family.
In a letter to the World Medical Association, the Vice President and Secretary General of the Chinese Medical Association, Dr. Wu Mingjiang, said:
The Chinese Medical Association will, through its influence, further promote the strengthening of management of human organ transplantation and prevent possible violations of the regulations made by the Chinese Government. We also hope to work more closely with the WMA and exchange information and views on the management of human organ transplantation."
Dr Edward Hill, chair of the World Medical Association, said the announcement by the Chinese Medical Association was a very positive step forward and added:
The agreement between the World Medical Association and the Chinese Medical Association to end organ sourcing from prisoners in China except for prisoners donating organs to their immediate family members is welcome. I was pleased to see that the agreement covered all prisoners and not just prisoners sentenced to death. This broader terminology means that in principle the agreement encompasses also Falun Gong practitioners who are held in detention but sentenced to nothing. Yet it does not remove all my concerns.
1. The Chinese Medical Association 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 Chinese Medical Association. The Chinese Medical Association 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.
2. Even if it had been the Government of China which had entered into the agreement instead of the Chinese Medical Association, 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 most recent dating May 2007. The very repetition of such laws is evidence that these laws are not effective.
The Chinese government has had a history of duplicity in this field. One 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.
3. The Chinese Medical Association is not doing what it can to respect the agreement. Liu Zhi of the Chinese Medical Association's international department said that the agreement with the World Medical Association has no legal effect. He expressed the hope that the agreement would influence China's 500,000 doctors and government decisions. This statement, in my view, minimizes the effect the agreement might have.
At the very least, the Chinese Medical Association 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 Chinese Medical Association has not done this indicates a less than wholehearted support for the agreement.
4. The Chinese Medical Association agreement does not bind military doctors who are not members of the Chinese Medical Association and military hospitals. Yet, organ recipients indicate that military doctors and hospitals are heavily involved in organ transplant surgery.
5. The agreement does not address the issues of onus 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.
Tom Treasure, a transplant surgeon wrote in the Journal of the Royal Society of Medicine4 considered it plausible that organ harvesting of Falun Gong practitioners could happen and that doctors could be "sufficiently distant to turn a blind eye and a deaf ear." The transplant professional is not acting ethically as long as he or she makes no inquiries or only cursory ones.
The agreement with the Chinese Medical Association would not mean very much if Chinese Medical Association 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.
The Professional Code of Conduct of the Medical Council of Hong Kong provides a salutary example. The onus is on the Hong Kong professionals to ascertain the status of a donor for a transplant outside Hong Kong.
Specifically the Professional Code of Conduct of the Medical Council of Hong Kong states:
This principle should apply to transplant professionals operating within China. The onus should fall on Chinese transplant professionals to ascertain the status of the donor.
6. The agreement does not address the standard of proof. Applying the right onus of proof does not exhaust the duties which fall on transplant professionals. They must also apply the right standard of proof.
If there is any reasonable doubt as to whether the consent is given freely or voluntarily by the donor, the professional within China should have nothing to do with the donation. In light of the fact that no donation from a prisoner can be considered voluntary, then, if there is any reasonable possibility that the organ source is a prisoner, then the transplant professional should not participate in either the sourcing or the transplant.
Again the Professional Code of Conduct of the Medical Council of Hong Kong is instructive. The onus is on the Hong Kong professionals to ascertain the status of a donor for a transplant outside Hong Kong. The Code provides:
This principle too should be incorporated into the agreement between the Chinese Medical Association and the World Medical Association.
7. 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 reality. The need for funds pushes doctors and hospitals to increasing transplant numbers and using historically available sources, prisoners.
8. The agreement with the Chinese Medical Association 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 Chinese Medical Association, 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, a most unlikely result. Unless China develops an organ donation system and allows for the sourcing of organs from the brain dead cardiac alive, the promises of the Chinese Medical Association are just empty words.
9. The mere fact that the recipient is an immediate family member of the prisoner does not automatically mean that the prisoner has freely consented to the donation. Our concern about this exception is heightened by the fact that people in China can be sentenced to death for a wide variety of economic and political crimes (for example tax fraud).
I am aware that this 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 my 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.
We have to be wary in this context of the excuse of tacit consent. The first Chinese law on transplants, enacted in 1984, presumed tacit consent from "uncollected dead bodies or the ones that the family members refuse to collect" of prisoners sentenced to death and then executed5.
This sort of excuse was raised by defendant Karl Gebhardt in the Doctors Trial at the Nuremberg Military Trials. The Doctors Trial was conducted by a US military court in the US occupied zone of Germany in Nuremberg after the International Military Tribunals were completed.
Gebhardt was the personal physician for Himmler charged with crimes against humanity for his participation in Nazi medical experiments. In his defense his lawyers argued that subjects on whom he was experimenting faced execution. Though the experimental subjects did not give explicit consent, they gave tacit consent, his lawyers argued, "being certain that they could not escape execution in any other way".
There was also, so his lawyers pleaded, presumed consent because the consent of the victim "could be expected normally". Rationally and objectively, the victims would have agreed to the experiments to avoid the certainty of their eventual execution.
Gebhardt did not himself select the experimental subjects. Even if there was no actual or presumed consent, his lawyers asserted that Gebhardt should not be held criminally responsible if he erroneously assumed the consent of the experimental subjects. An action can not be considered intentional if it was done on an erroneous assumption of justificatory facts.
The Nuremberg Military Tribunal rejected these arguments. The Tribunal noted that many of the experiment subjects who otherwise faced execution had not gone through any semblance of a trial. The Tribunal wrote:
Moreover, so the Tribunal reasoned, even if the experiment subjects had been sentenced to death, the law
Gebhardt was found guilty of crimes against humanity and sentenced to death in August 1947. He was executed in June 1948.
10. The World Psychiatric Association eventually agreed in 1989 to readmit the Soviet Union provided four conditions were met. One these conditions was that the Soviet Psychiatric Association acknowledge that systematic abuse of psychiatry for political purposes had taken place.
It would seem that a precondition for resolving any problem is acknowledging that the problem exists. Yet, those who enacted the new law are not prepared to do this. The official announcement of the May 2007 law states
This statement is patently untrue and is contradicted by information from other official Chinese sources.
If the Chinese officials are prepared to lie about the present when they talk about this new law, what hope is there that they are telling the truth about the future? How can a law resolve the problem of sourcing organs from prisoners when those who enact the law are not prepared to acknowledge that this sourcing even exists?
In a state where the political arm controls the police, the army, the prosecution and the courts, there is no need for legislation to give the state power to do anything. Legislation serves a propaganda, or, if you will, educational purpose. Especially in a country of over one billion people, it is this propaganda or educational purpose which is paramount. Legislation is a vehicle for communicating a state message.
What is the message of a law which pretends the problem which generated it does not exist? What does this pretence say to those responsible for creating the problem? The message, we suggest, is "go ahead, carry on". "We have not noticed and we will not notice". We are enacting this law for outsiders so that they can think something is being done, not for you.
It is hard to take seriously any suggestion that the authorities are cracking down on misbehaviour when they refuse to acknowledge that this misbehaviour is even taking place. While anti-corruption campaigns in China do not amount to much, at least there is an acknowledgement that there is corruption. Would any one in China take seriously an anti-corruption campaign which refused to acknowledge that there was corruption? Can anyone even in China take seriously legislation to ban the use of improperly sourced organs when the Government of China refuses to acknowledge that organs are improperly sourced?
Another of the conditions the World Psychiatric Association imposed on the Soviet Union as the price of readmission was that the Soviet Union rehabilitate the victims. Rehabilitation of the dead has no significance in this context. But redress does. Redress can take a variety of forms. But at the very least it involves acknowledgement of the reality of what happened.
Whether it be the price of continued membership or the price of readmission after eviction, the Chinese Medical Association, to continue membership in the World Medical Association should do no less. For membership of the Chinese Medical Association in the World Medical Association to continue, the Chinese Medical Association must acknowledge that systematic abuse of transplant surgery for has taken place.
11. There is no verification system in place to determine whether or not the agreement with the Chinese Medical Association is being kept. Such a verification system needs to be independent from the Government of China and the Chinese Medical Association itself.
There has be transparent documentation of the sources of organs used by Chinese Medical Association doctors in transplant operations. The Chinese Medical Association 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 lawyers' organizations, transplantation numbers which involve its members, donor names and the names of the immediate family members who may receive transplants from prisoners.
12. Statistics about sources of transplants should be publicly available. Both the World Medical Association and the Chinese Medical Association should call for the publication of these statistics.
The United Nations Rapporteur on Torture, Manfred Nowak, and the UN Rapporteur on Religious Intolerance, Asma Jahangir, in their 200 report wrote:
The Government of China responded but without addressing the concerns raised. As a result, the Rapporteurs reiterated their concerns in 2008 with these words:
The Chinese government, in a response sent to the Rapporteurs by letter dated March 19, 2007 and published in the report of Professor Nowak to the UN Human Rights Council dated February 19, 2008, stated that
Moreover, the Government of China, lest there be any doubt, asserted that
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:
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 was posted on the website for transplantation professionals in China9. The text, dated 2006-03-02, stated, in part, in translation:
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 which states:
This article flies in the face of the official Chinese statement to the Rapporteurs 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.
China is a state party to the Convention against Torture. The Convention obligated China to report periodically to an expert committee established under the Convention on China's compliance with the Convention.
The United Nations Committee against Torture, when considering China's most recent compliance report, in November 2008, in its concluding observations, wrote:
This issue then was further amplified by the United Nations Universal Periodic Review Working Group in February 2009. The Universal Periodic Review is a new element of the United Nations Human Rights Council which was created in 2006 to replace the failed UN Human Rights Commission. Under the Universal Periodic Review, every state gets reviewed once during a four year cycle. China's turn came up February 2009 in Geneva.
Only states can intervene in the Universal Periodic Review Working Group debate. But it can be any state; it does not have to be a state which is a member of the Human Rights Council. The debate is an interactive dialogue, meaning China has a right to respond.
Regrettably, today 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 World Medical Association and the Chinese Medical Association should ask the Government of China to make this information available.
At the Universal Periodic Review in January 2009, Canada, Switzerland, United Kingdom, France, Austria, Italy recommended that China publish death penalty statistics. The Government of China said no to this recommendation.
13. Organ transplant statistics as well as information about execution of prisoners sentenced to death since the advent of the agreement indicate no improvement in the situation. The enforcement of the law of May 2007 has led to an decrease in transplant tourism into China. However, patients from abroad have been replaced by patients from within China.
Before January 1, 2007, the death penalty could be imposed by regional courts, the Higher People's Courts. As of January 1, 2007, any death penalty imposed by a regional court has to be approved by the central Supreme People's Court.
This shift in procedures reduced temporarily the pool of prisoners sentenced to death, according to the tabulation of Amnesty International by about half. Fewer people sentenced to death meant fewer people with these sentences available for organ transplants.
Statistics from the Government of China show that organ transplant volumes have not declined as much as this declining supply. The China Liver Transplant Registry reports these figures year by year:
1998-17, 1999-73, 2000-177, 2001-291, 2002-618, 2003-1128, 2004-2219, 2005-2970, 2006-2781, 2007-1822, 2008-2209.
A blogger toeing the Chinese Communist Party line and disagreeing with the report that David Kilgour and I wrote attempted to argue that these statistics showed that the increase in transplants coincident with the persecution of the Falun Gong was attributable to the acquisition in China of transplant technology and not to the persecution. This argument ignores the statistics of kidney transplants, a technology which had matured and spread a good deal earlier than liver transplant technology and which shows the same increase when the persecution of Falun Gong began.
Year by year figures for China for kidney transplants before the persecution of the practice of Falun Gong began were 1989 - 1,049, 1990 - 1,670, 1991 - 1,746, 1992 - 1,906, 1993 - 1,849, 1994 - 1,621, 1995 - 2,382, 1996 - 2,792, 1997 - 2,552, 1998 - 3,37911. In 1999, the year the persecution began, the figure was 4,265. For 2000, the figure was 5,501, for 2001 - 5,496. By 2004, the figure was 7,300 and for 2005, 10,000.
Amnesty International figures of prisoners sentenced to death and then executed or those years are 1998-1067, 1999-1077, 2000-1000, 2001-2468, 2002-1060, 2003-726, 2004-3400, 2005-1770, 2006-1010, 2007-470, 2008-1718.
If prisoners sentenced to death and then executed were the sole source of organs for transplants, one would expect transplant figures to track execution of prisoners sentenced to death figures. But that is not happening.
2007 shows a decrease in liver transplants, consistent with the fall off in the execution of prisoners sentenced to death and the change in organ transplant law. Yet, the fall off in liver transplants in 2007 was nowhere near the fall off in execution of prisoners sentenced to death.
From 2006 to 2007, the decrease in execution of prisoners sentenced to death was 53%. The decrease in liver transplants was 34%.
Moreover, in 2007 there were two downward pulls on liver transplants. There was not just the decrease in execution of prisoners sentenced to death but also the Health Ministry requirement imposed in 2007 that transplants take place only in registered hospitals. This requirement shut down completely transplants in non-military non-registered hospitals and shut down temporarily transplants in later registered hospitals until they were registered.
This dual downward pull in principle should have created a decrease in transplants substantially more acute than the decrease in the execution of prisoners sentenced to death. Yet, the opposite has occurred.
Persons executed after being sentence to death were, according to Amnesty International, near an all time high in 2004. The figures in 2008 for prisoners executed after being sentence to death were nowhere near as high, about half. Yet, liver transplant numbers in 2008 bounced back to 2004 levels.
How was China been able to hold in 2007 its reduction of liver transplant volumes to only 34% in the face of the imposition of a licensing requirement for non-military hospitals doing transplants and a 53% reduction in what Chinese officials claim to be their almost exclusive source or organs? How has China been able to return to historically high liver transplant volumes in 2008 in the absence of a commensurate increase in execution of prisoners sentenced to death?
The only plausible answer is an increase in sourcing of organs from the only other significant available source, Falun Gong practitioners. Since the report David Kilgour and I wrote came out, the problem of sourcing of organs from Falun Gong practitioners has become worse.
The temptation Chinese hospitals face is obvious when there is a clamorous demand for organs, a ready supply from one source - disappeared, unidentified, calumnied Falun Gong practitioners held in indefinite detention, a reduction in supply from the only other substantial source, and huge amounts of money at stake. Since the agreement between the World Medical Association and the Chinese Medical Association, transplants sourced from Falun Gong practitioners must have increased substantially.
14. There needs to be an independent investigation of the claims that Falun Gong practitioners have been used for organ transplants. The World Medical Association and the Chinese Medical Association should call for such an investigation.
The United Nations Committee against Torture wrote further in its November 2008 concluding observations:
David Kilgour and I are independent from the Government of China and the Falun Gong community. The Committee against Torture did not mean to suggest anything different. What they were proposing was an investigation independent from the Government of China with which the Government of China would nonetheless cooperate by giving access to Chinese territory, documents, places of detention and witnesses in China without fear of intimidation or reprisals.
At the Universal Periodic Review Working Group, Canada recommended that China implement the recommendations of the Committee against Torture. The Government of China explicitly, in writing, rejected this recommendation.
15. The Government of China needs to take measures to ensure that those responsible for organ transplant abuses are prosecuted and punished.
The United Nations Committee against Torture, in its November 2006 concluding observations, called on China to "take measures, as appropriate, to ensure that those responsible for such abuses [torture and organ harvesting of Falun Gong practitioners] are prosecuted and punished." The World Medical Association and the Chinese Medical Association should do likewise.
The former chair of the World Medical Association, Dr. Yoram Blachar, who led the World Medical Association delegation to China, said that differences between the two sides remained. The World Medical Association needs to continue to press the Chinese Medical Association on this issue until this appalling practice in China of killing prisoners for their organs ends entirely.
Yet, there is no visible activity from the World Medical Association on this issue since its October 2007 Assembly. The issue of abusive organ transplantation in China appears simply to have fallen off the radar screen. What has the World Medical Association been doing?
David Matas is an international human rights lawyer based in Winnipeg.
1"Organ Transplants: A Zone of Accelerated Regulation", Caijing Magazine (Online), 28 November 05
2Adopted by the 52nd WMA General Assembly in Edinburgh, Scotland during October 2000 and Revised by the WMA General Assembly, Pilanesberg, South Africa, October 2006 paragraph 16.
3"Bloody Harvest: Report into Allegations of Organ Harvesting of Falun Gong Practitioners in China". In much of this presentation, I draw from that report. The sources for those elements of the report which are included in this text can be found in the report itself.
4Volume 100 March 2007 J R Soc Med 2007;100:119-121
6Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Addendum, Manfred Nowak UN Document A/HRC/4/33/Add.1, 20 March 2007, paragraph 40; Report of the Special Rapporteur on freedom of religion or belief Addendum, Asma Jahangir, UN Document A/HRC/4/21/Add.1, 8 March 2007 paragraphs 107 to 111.
7Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Addendum, Manfred Nowak, UN Document, A/HRC/7/3/Add.1, 19 February 2008, paragraph 36; Report of the Special Rapporteur on freedom of religion or belief, Addendum, Asma Jahangir, UN Document A/HRC/7/10/Add.1, 28 February 2008, paragraph 40 and 41.
8UN Document A/HRC/7/3/Add.1
12Concluding observations of the UN Committee against Torture on China UN Document number CAT/C/CHN/CO/4, 21 November 2008 paragraph 18(C).