The recent agreement between the WMA and the CMA to end organ sourcing from prisoners in China except for prisoners donating organs to their immediate family members is welcome. We are pleased to see that the agreement covers 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 our concerns.
A. The Chinese Medical Association (CMA) is not a governmental entity. Its promise to avoid organ sourcing from prisoners indicates the good will of some Chinese medical doctors. However, it is not binding on the government. 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. It is only the Chinese government that can stop this practice.
B. 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 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.
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.
C. 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.
D. The agreement does not address the issues of onus and standard of proof. In many cases in China, medical 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.
E. 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 to 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 CMA 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.
F. In China, transplant surgery has become essential for financing the medical profession and hospitals. A dramatic decrease in transplant surgeries would impose a substantial financial burden on the health care system. Without an increase in Government funds to the health care system, it is unlikely that hospitals will cease relying on transplant surgery for funding. 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.
G. The CMA agreement does not bind doctors who are not members of the CMA. In particular, it does not bind military doctors who are not members of the CMA or military hospitals. Yet, organ recipients recount that military doctors and hospitals are heavily involved in organ transplant surgery.
H. 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. According to Deputy Health Minister Huang Jiefu, ~95% of all organs for transplants come from prisoners. The implementation of the agreement with the CMA, in the absence of an organ donation system and a brain dead law, would mean that organs for transplantation in China would be almost non–existent, an unlikely result.
I. 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. We are 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 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.
We note the statement of the former chair of the WMA, Dr Yoram Blachar, who led the WMA delegation to China, that differences between the two sides remained. We urge the WMA to continue to press the CMA on this issue until this appalling practice in China of killing prisoners for their organs ends entirely.
/s/ Torsten Trey, MD
Chief Executive Director
Doctors Against Forced Organ Harvesting (DAFOH)
/s/ David Matas and David Kilgour, JD
Co-authors of the report “Bloody Harvest”
/s/ Theresa Chu, Carlos Iglesias, Terri Marsh, JD
Human Rights Law Foundation (HRLF)