(Remarks prepared for delivery as a poster presentation to the Transplant Nurses Association, Melbourne, Australia, November 15, 2012)
China is the leading country in the world for transplant volume outside of the United States. Yet, it has only a fledgling donation system for deceased donors. The numbers generated by the deceased donation system are insignificant. Its live donation system is limited in legally permissible scope, unhealthy for the donors and subject to crackdown because of fraud in attempts to fit within the narrow legal framework.
Almost all of the organs for transplants, by the admission of the Government of China, comes from prisoners. According to research David Kilgour and I have done, in reports released July 2006 and January 2007, and in a book published November 2009 all under the name Bloody Harvest, the bulk of these organs come from imprisoned prisoners of conscience, mostly practitioners of the spiritually based set of exercises Falun Gong.
China needs to develop a numerically significant deceased organ donor volume. Even before that happens, whether that happens or not, immediately, China should stop sourcing organs from prisoners.
A. Deceased donations
The Chinese Ministry of Health, under the supervision of the Chinese Red Cross, in March 2010 set up an organ donation system in 11 provinces and municipalities. This system is limited to donation after cardiac death. It does not contemplate either living donations or donations after brain death only.
The newspaper Beijing Today reported in March 2011, one year after the start of the pilot project, “In Nanjing, the capital of Jiangsu Province, [one of the eleven sites], not one person has elected to be a donor.” Liu Wenhua, a member of the Red Cross of Nanjin and one of 12 donation counsellors sent by the city government to five hospitals said “only three people in Nanjing have donated organs in the past 20 years”. The story goes on to note: “Success was equally absent in other regions. As of last Thursday, only 37 people nationwide had registered to donate their organs.” There is no indication how many, if any, of these 37 had died during the year, resulting in actual donations.
A bizarre publication in the Journal of the American Medical Association in July 2011 of some Communist Party propaganda about organ transplants in China, a commentary title “Regulation of Organ Transplantation in China: Difficult Exploration and Slow Advance” by Shi Bing Yi Shi and Chen Li Ping, members of the Chinese military, the People’s Liberation Army gives some information. The publication itself, it should be noted, violated medical ethics.
The Transplantation Society Ethics Committee Policy Statement on the Chinese Transplantation Program states: “presentations of studies involving patient data or samples from recipients of organs or tissues from executed prisoners should not be accepted.” The Editors and Associate Editors of the journal Liver Transplantation, wrote that they “have decided that original publications dealing with clinical liver transplantation outcomes submitted to this journal should explicitly exclude the use of executed prisoners or paid donors as a source of donor organs.” Publication of the Commentary violated the spirit of these standards.
So we have to approach the Commentary published by the Journal of the American Medical Association with repugnance. It does have nonetheless some data consistent with other data.
The Commentary observes that with the (after cardiac death) donation system set up as a pilot project in eleven cities “more than 200 individuals” volunteered to donate their organs, and that “only 63 were able to do so by the end of May 2011”. To write, as the authors do, that only 63 “were able” to die in a certain period is, to say the least, an odd way of putting things. One has, I think, to be a dyed in the wool member of Communist Party of China to characterize staying alive as an inability. Yet, the Commentary does confirm the point that this donation system is statistically insignificant as a source or organs.
By March 2012, the pilot project had spread to sixteen regions and led to 546 organ donations from 207 donors. 15,379 people had registered as organ donors. Under the pilot project, relatives of 90% of the deceased donors received subsistence benefits. These benefits led to concern that they were disguised forms of payment for donated organs. If this is indeed the case, we can expect a crackdown on deceased donations even before they have got off the ground.
These donations are tiny. Nonetheless, the failed effort is worth noting. The very failure indicates the lack of seriousness of the Communist Party/Chinese state combat in overcoming the cultural aversion to donations. For the Party/State, increasing deceased organ donations is not a priority.
B. Living Donations
The current law allows for living donor sourcing from relatives. The State Council of the People’s Republic of China Regulations on Human Organ Transplant effective as of May 1, 2007 states
“The recipient of a living organ must be the donor’s spouse, lineal descent or collateral relative by blood within three generations, or they must prove they have developed a family like relation with the donor.
Living related donors could in theory be prisoners. There is no express intent to exclude living related donor prisoners.
The Government of China is trying to discourage sourcing from living donors, because of the risks to the donors. In an article in the China Daily, Chen Shi, an organ transplant expert with the institute of transplantation at Shanghai based Tongji Hospital, is quoted as saying
“Living organ donations, which can cause health risks for the donor, should always be the last resort when no suitable organ from a deceased donor is available.”
There has been fraud in the use of living relative donor exception which the authorities have been trying to control. Identities of donors have been disguised to pretend that they are relatives when they are not. This has led to a clampdown on living donor sourcing.
In Dongguan, doctor Zhou Kaizhang and seven others were prosecuted in August 2012 for this type of fraud. According to the Chinese Medical Doctor’s Association, Dr. Zhou had performed 1,000 kidney transplants. The prosecution related to 51 kidneys transplanted between March and December 2010.
Unethical organ transplants in China are not going to be confined to live donors. There is no particular reason why abusers would restrict themselves to live donors. Abuse of deceased donor sources is similar pattern behaviour.
There is plenty of evidence of abuse in the deceased donor organ transplant system. Yet, all the news stories we see of clampdowns relate to live donors. Why is that so? Why is there no comparable clampdown on deceased donor organ transplant abuse? The answer must be that the authorities are prepared to tolerate that form of abuse. That toleration is one form of complicity in the abuse.
How many live donations are the product of the corrupt black market system which in theory China is trying to discourage? How large will the living donor numbers be once the black market is shut down? In light of the fakery going on, which Chinese officials admit, how do we even know that the donors survive what are supposedly live donations?
In an interview dated September 18, 2012 Deputy Health Minister Huang Jiefu stated that 65% of organs come from prisoners and 35% from living donors. He added that live donations should be a last resort and not advocated. Living donations can cause damage to healthy donors and violates the “no harm” principle of medical ethics. Chinese medical insurance does not provide long term coverage to donors for complications from living donor transplants.
He noted that a living donor black market has emerged, inducing the poor to sell organs to wealthy people willing to pay high prices. This practice, he added, violates the principles of health care reform. The Ministry of Health issued a policy directive that live organ donor transplants must be approved by a provincial health department.
C. Prisoners sentenced to death
The Government of China acknowledges that organs for transplants done in China come overwhelmingly from Chinese prisoners. The claim of the Government of China is that these prisoners who are the sources of organs harvested for transplants are convicted criminals sentenced to death and then executed who consented before execution to the use of their organs for transplants.
In July of 2005 Huang Jiefu, Chinese Deputy Minister of Health, indicated as high as 95% of organs derive from execution. Speaking at a conference of surgeons in the southern city of Guangzhou in mid November 2006, he said: “Apart from a small portion of traffic victims, most of the organs from cadavers are from executed prisoners”. In October 2008, he said “In China, more than 90% of transplanted organs are obtained from executed prisoners”. In March 2010, he stated that: “… over 90% of grafts from deceased donors are from executed prisoners”.
As one can see, at some points, Huang Jiefu refers to deceased donor sources and at other points to all sources. The questions then become, how many live donors are there and how many persons are sentenced to death and then executed? Answering the second question, how many persons are sentenced to death and then executed is not that easy, since the Chinese State and the Communist Party which runs the State consider this information to be a state secret. We are left with external estimates.
Vice President Zhang Jun of the Supreme People’s Court in January 2011 stated that China’s Supreme People’s Court would overturn death sentences in cases where evidence was collected by illegal means. The judge said that the move was intended to limit the application of capital punishment and pressure local courts to check evidence more thoroughly.
The China National People’s Congress Standing Committee amended the Criminal Law in February 2011 to decrease the number of death penalty offences from 68 to 55. In a second change, the death penalty could no longer be imposed on those 75 years or older at the time of trial, except for a person who has committed a murder with “exceptional cruelty”. The new law came into effect May 1.
The Supreme People’s Court (SPC) wrote, in its annual report released in May 2011, that the death penalty should only be applied to “a very small number” of criminals who have committed “extremely serious crimes.” Chinese courts were told to pronounce a two year suspension of execution for condemned criminals if an immediate execution is not deemed necessary; capital punishment reprieves should be granted as long as they are allowed by law.
This downward slide in the death penalty continues a previous trend. The most significant prior development was the requirement, which took effect on January 1, 2007 that all death sentences had to be approved by the Supreme People’s Court. That change alone led to a reduction of an estimated 30% to 40% in the imposition of the death penalty.
In the abstract, from a human rights perspective, the reduction in the death penalty is good news. The news ceases though to be good if the decrease in the death penalty leads to an increase in the killing of Falun Gong for their organs. While the decrease in the death penalty has occurred at the same time as the increase living donor transplants, the increase in living donor transplants has come nowhere near the estimated decrease in the death penalty.
Since we do not know with precision the number of executions, another tack is trying to figure out the volume of executions which would support the volume of transplants, a figure which we have. The volume of executions has to be a multiple of the number of transplants for a variety of reasons.
One reason is the absence of a national organ distribution system. Individual hospitals make arrangements with individual prisons for organs. There is substantial organ wastage in China.
A second reason is that transplanting several organs at once from the same donor contradicts the recipient information. Everywhere else patients wait for donors. In China, sources wait for patients. Once the patients are ready, the sources are killed.
Given the short waiting times for transplants and the absence of national organ distribution system, sourcing several organs from the same donor would require recipient coordination. Yet, our interviews with recipients show no such coordination.
A third reason relates to the Chinese government claim that donors consent. While there is no proof of this consent, let us take the Chinese government claim at face value, that persons sentenced to death actually do consent. Then consider the failure of the national donor system.
The low rate of consent is attributed to cultural aversion to donations. Yet prisoners sentenced to death in China come from the same culture as other Chinese and would have the same cultural aversion to donation. There is no reason to believe that their consent, if freely given, would occur at any different rate than consents outside of prison.
So we are left with a choice. Either consents of persons in prison sentenced to death, like consents of persons outside of prison, are statistically insignificant. Or the notion of prisoner consent is just a sham, one more piece of Communist propaganda.
The prison environment and impending execution may induce consents which would otherwise not be forthcoming. However, consents at a higher rate than the non-prison population because of these factors are indicators of the coercive impact of prison on voluntariness and not indicators of true consent.
As well, though the prison coercive environment may induce rates of nominal consent higher than that of the general population, it is implausible to suggest that the rate of nominal consent would be near or close to 100%, given the almost total reluctance of the non-prison population to consent. Even within a prison atmosphere, there will be, in light of Chinese cultural aversion to donation, a significant proportion of prisoners who will not even nominally consent.
A fourth reason the volume of executions has to be a multiple of the number of transplants is the Criminal Procedure Code of China requirement that a convict sentenced to death to be executed seven days after sentence. The Code allows the sentence to be executed by either injection or shooting.
The interviews David Kilgour and I have had with patients tell us that, if the source of the organ was a prisoner sentenced to death and then executed, the seven day rule was not being respected. For, if it were, then patients would have had at most seven days notice of the availability of a transplant and would have been told that the organ would have been available at a precise date.
However, patients were not being told that. They were told, and hospitals were advertising this on their websites, that organs would be available at any time, at the convenience of the patients.
It would be reasonable to assume that the seven day rule for execution was often, even if not universally, applied. That would mean that many prisoners sentenced to death and then executed were not sources of organs for transplants.
Even in a country like China, where there is no rule of law, no independent judiciary, no free media, no democracy, where human rights defenders are repressed, there is some scope for the presumption of legality. Corruption undermines the presumption, but does not replace it altogether.
For prisoners sentenced to death, where there was money to be made from transplants, the corrupt would be tempted to ignore the seven day rule. However, it is reasonable to assume that at least some Chinese officials are not corrupt.
The fifth reason the volume of executions has to be a multiple of the number of transplants is the form of execution. Until 2006, the majority of death penalty prisoners were executed by shooting. In a 2006 article for USA Today, Liu Renwen, death penalty researcher at the Chinese Academy of Social Sciences, is quoted as saying that the “majority (of executions) are still by gunshot… But the use of injections has grown in recent years, and may have reached 40%.”
Until January 2008, execution by shooting was common. That month Jiang Xingchang, the vice president of the Supreme People’s Court, announced to the China Daily an expansion of lethal injections to replace shootings.
Once a person is shot and killed, there is almost immediate organ deterioration. Organ transplants can be sourced from those shot and killed, if the sourcing is done immediately. Injection offers the luxury of time. The bulk of the anecdotal evidence we have, except for the period when China began transplants, is that organ sources are injected and not shot. Many of those executed by shooting, because of the practical reality of immediate organ deterioration and the inability to organize on the spot harvesting, are not organ sources.
A sixth reason is the need for blood type and ideally tissue type compatibility between the donor and the recipient. Not every donor is available as a source for every patient. Moreover, since sourcing is local, each detention centre with ties to a local hospital has to have its own group of prisoners waiting for execution, its own organ donor bank. The notion that at any one time at all major prisons in China there are large volumes of prisoners sentenced to death and awaiting execution runs contrary to observed experience.
Then UN Rapporteur on Torture Manfred Nowak, on his visit to China in November 2005, found in prisons persons sentenced to death at first instance awaiting appeal, but none sentenced to death awaiting execution. When he asked to see such prisoners, he was told that there were none, because all prisoners sentenced to death whose appeals had been exhausted were executed immediately.
A seventh reason the volume of executions has to be a multiple of the number of transplants is blood disease which renders transplantation unsuitable. The most common such blood disease is hepatitis B, which is endemic in China. One study estimated 50 to 60 % of the Chinese population carries hepatitis B markers. Another study focused on four Chinese cities found the infection rate to be 62.6%.
If we look just at this last reason alone we would need 267 prisoners for every 100 organ recipients. If we put the other factors into the mix, we are looking at more like a factor of ten to one. That is to say, 10,000 organ transplants a year, if the sourcing is solely prisoners sentenced to death and then executed, would require something in the order of 100,000 executions a year.
One has, of course, to take into account the increased sourcing from living organ donors. On the other side of the ledger are the death penalty developments which have cut down substantially on executions.
The bottom line is that the volume of prisoners sentenced to death and then executed necessary to sustain the current rate of transplantation is so out of whack with every death penalty estimate in China, by far, as well as Chinese death penalty execution procedures that organ sourcing, preponderantly, must be coming from other sources than prisoners sentenced to death and then executed. And what would those other sources be?
D. Prisoners of conscience
David Kilgour and I in a report published first in July 2006 and then January 2007 concluded that there were 41,500 transplants in the six year period 2000 to 2005 where the only explanation for the sourcing was Falun Gong practitioners. In November 2009 in our book Bloody Harvest: The Killing of Falun Gong for their Organs concluded that since our report, matters have become worse, that there has been an increase in sourcing of organs from Falun Gong practitioners.
Falun Gong is a set of exercises with a spiritual foundation banned by the Communist Party and then the Government of China in 1999 out of jealousy at its popularity and fear that its spirituality, rooted in ancient Chinese traditions, would undermine the ideological supremacy of Western imported Communism. After the banning, Falun Gong practitioners were arrested in the hundreds of thousands. Those who recanted spontaneously or after torture were released.
Those who refused to recant disappeared into what the Government of China euphemistically calls re-education through labour camps. These camps are both arbitrary detention slave labour camps and vast live organ donor banks. The Laogai Research Foundation estimated in 2008 that the number in the camps then currently detained were between 500,000 and two million souls.
David Kilgour and I drew the figure of 41,500 by looking at volumes of transplants and volumes of executions before and after the persecution of Falun Gong began. After the persecution of Falun Gong began transplant volumes shot up, but executions remained steady. So we attributed the difference in transplant sources to Falun Gong. After the release of the second version of our report and before the publication of our book, executions decreased and transplant volumes, after an initial dip, returned to traditional levels. So we concluded that sourcing from Falun Gong practitioners had increased.
A development since the publication of Bloody Harvest has been the work of Ethan Gutmann and Jaya Gibson. Their work, first announced in June 2010 and elaborated in a chapter in the recently published book State Organs: Transplant abuse in China, which Torsten Trey and I have co-edited, tells us that the killing of innocents for their organs has spread from Falun Gong to Tibetans, Eastern Lightning house Christians and Uighurs. Gutmann and Gibson glean this information from interviewing members of these victim groups who got out of Chinese detention centres and then out of China. Those interviewed tell them of blood testing and organ examination of the sort that Falun Gong practitioners endured.
This phenomenon means we cannot ascribe the difference between transplant volumes and death penalty volumes to Falun Gong practitioners alone. Some of the sources will be these other victim groups.
Our figure of 41,500 was generated by comparing transplant volumes before and after the persecution of Falun Gong began. The most reliable death penalty statistics came from Amnesty International. Though they were almost certainly an underestimate because based on media reports alone, we considered them reliable indicators of multi-year trends, if not yearly totals. Multi-year averages of executions, according to Amnesty International figures, remained constant before and after the persecution of Falun Gong. The difference between transplant volumes before and after the persecution of Falun Gong could then reasonably be attributed to Falun Gong sourcing.
Amnesty International has stopped publishing death penalty statistics. It used to provide a death penalty log, setting out individual cases. The last log, published in 2002 set out executions for 2000. Amnesty International continued with yearly estimates after 2002 of persons sentenced to death and then executed, but its last statistics, for 2008 of 1,718 executions, was published in our book. There are no statistics for 2009 or 2010. The organization gave no explanation for stopping either the log or the statistics.
The loss of information is regrettable. The log and the statistics were based on media reports. While not every execution was publicly reported and therefore the log and statistics gave a number lower than total executions, the figures were useful for indicating trends and characteristics. One could see from the log and statistics which Amnesty International compiled the breakdowns, for instance, by crime, region and gender. Amnesty International should re-establish its log and statistical reporting.
Tibetans, Uighurs and Eastern Lightning house Christians, sources Ethan Gutmann and Jaya Gibson have identified, are unlikely to come anywhere near the necessary volume. Uighurs and Tibetans are detained in specific geographical locations in China, not throughout China. Eastern Lightning house Christians suffer nowhere near the rate of detention nor extremes of vilification of Falun Gong. Falun Gong practitioner prisoners remain the most plausible source for the bulk of transplants in China.
The onus lies on the Government of China to provide the numbers. The current situation creates a presumption of wrongdoing beyond the sourcing of organs from prisoners sentenced to death and then executed.
Organ transplant sourcing must be transparent and traceable. The Government of China admits that organs are sourced predominantly from prisoners. What then is it trying to hide by not providing numbers? One compelling answer is that it is trying to hide the killing of Falun Gong and other prisoners of conscience for their organs.
The claim that the sources have consented, as unpersuasive as it is for prisoners sentenced to death, would be impossible for innocent sources. The killing of innocents for their organs is murder. The killing of prisoners of conscience for their organs is a crime against humanity.
Criminals against humanity typically make every effort to cover up their crimes. The secrecy we see about numbers looks to be just that, a cover up of a crime against humanity.
Replacing the prisoner source of organs for transplants with a voluntary deceased donor source is the stated goal of the Government of China. Deputy Health Minister Huang Jiefu in March this year said that China plans to abolish the sourcing of organs from prisoners within five years. Wang Haibo, a Chinese health official appointed to design an organ allocation system, said earlier this month (November 2012), that China will start phasing out is reliance on prisoners for organs early next year.
There are cultural, political and financial obstacles to increasing deceased donations. The killing in China of prisoners for their organs should stop immediately and not await an increase in deceased donations.
While increasing voluntary deceased donations should be a priority, increased the sourcing of organs from the deceased who are not prisoners does not, on its own, alleviate concern for abuse. The World Health Organization Guiding Principle 11 requires transparency of sources, open to scrutiny, while ensuring that personal anonymity of donors and recipients are protected. How can we know that the deceased outside prison who are the sources of organs acted voluntarily in signing over their organs? In a system without transparency, accountability and the rule of law, the answer is that we have no way of knowing.
It is impossible to run an island of ethical organ donation in a raging sea of human rights abuses. The infrastructure necessary to ensure respect for organ donation ethics simply does not exist.
Ending organ transplant abuse in China and having a functioning organ donation system can not be done by a focus on the organ sourcing system in isolation. We will see transparent, accountable, ethical organ sourcing in China only when we see the rule of law in China.
David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada.