Organ Transplant Abuse in China and Legal Responses

(Remarks prepared for delivery to the World Congress for Medical Law, Gold Coast, Australia, December 7th, 2022)
by David Matas

 

The Congress theme for the papers presented today is medicine and technology. The technology I wish to address is the technology of organ transplantation. 

 

The development of this technology is relatively recent, subsequent to World War II. Its development has led to legal issues which did not exist before this technology developed.

 

Transplant technology was, when initially developed, considered a boon to humanity.  There were attempts to spread it as quickly and widely as possible, without anything much in the way of legal constraints. 

 

The consequence, in China, has been the industrialized mass killing of prisoners of conscience for their organs.  The victims have Tibetans, House Christians, most notably Eastern Lightning, and primarily practitioners of the spiritually based set of exercises Falun Gong, since the early 2000s, and more recently, since 2017, Uyghurs in Xinjiang.  Patients in need of transplants have flooded into China from around the world to receive, on demand,   matching organs from this prisoners of conscience population, kept in arbitrary, indefinite detention until they are killed through organ extraction.

 

Some people here may be aware of this abuse. Everyone who has gone through the evidence comes to the same conclusion, that the abuse has occurred and is occurring.  Contemporary research produces the same results as past research. 

 

Yet, I suspect that there are at least some in this room and, if not, certainly outside this room, who are not aware of this abuse, some who would express surprise and even disbelief.  The first question I want to address is why this is might be so, despite the overwhelming, incontrovertible, constantly reaffirmed conclusions to the contrary, by a wide variety of researchers, beyond any reasonable doubt. 

 

One explanation is the technology itself.  Disbelief about the mass killing of prisoners of conscience for their organs is, in part, the result of the anomalous juxtaposition of the benefit of organ transplantation and the harm of mass killing of prisoners of conscience.

 

There is an apparent complete mismatch between transplant technology and the mass killing of prisoners of conscience.  Their linkage appears to be a joining of opposites. On its surface, transplant technology would seem to be an unmitigated good.  The mass killing of prisoners of conscience appears to be a wrong without excuse or value or justification. 

 

A second explanation is the strangeness of the new.  We can recognize easily mass killing of innocents which occur today in the same form as mass killings that occurred in the past.  However, state organized industrialized mass killings of prisoners of conscience for organs is not something we have seen before or even see now anywhere outside of China.

 

Another factor explaining disbelief is the manner in which the crime is committed.  The victims can not speak. There are a few who can say that they have been threatened with organ harvesting but were not harvested. But even those few know nothing about others who have been victims of the abuse.  What those threatened few can see is the only the hospital room or jail cell where the threats took place.

 

The bodies of victims killed through organ extraction are cremated and can not be autopsied.  There are no piles of corpses without organs.  

 

The crimes occur in a setting where there are no bystander witnesses, only perpetrators and victims.  There are a few whistleblower perpetrators, but even those few mostly do not want to make public statements both because of risk to themselves and their families and the wish to avoid admitting publicly their own guilt. 

 

Chinese hospital, prison and detention records are not publicly available.  There is no access to these records by independent outside investigators, despite a raft of international requests for this access.  

 

The Chinese Communist Party and the Government of China that it controls engage in systematic cover-up, closing down data streams once cited, and denying all evidence of the abuse, even evidence which comes from their own records. They fabricate contrary evidence which is easy enough to see through with diligence, but can be deceptive for the unwary. 

 

The victim groups are demonized.  Uyghurs, who are mostly Moslem, are labelled as potential terrorists.  Falun Gong practitioners, engaged in , a Chinese equivalent of yoga, are slandered as members of a self-destructive cult.   

 

Generally, people are familiar enough with Islam to reject as bigotry the slur that all Moslems are actual or potential terrorists.  Falun Gong is not as well known. The words “Falun” and “Gong” mean nothing in languages other than Chinese. Its existence is relatively recent, starting from 1992. 

 

It is perverse to call an exercise regime, which Falun Gong is, bad for health.  Yet, ignorance of the nature of Falun Gong is so widespread that many people do not have the knowledge to dismiss Chinese Communist propaganda against Falun Gong out of hand. 

 

A further problem with the evidence of organ transplant abuse in China is that there is not too little evidence, but rather too much.  It is easy enough to convince anyone of organ transplant abuse in China with prisoner of conscience of victims who has the patience to go through the evidence. The evidence is set out in hundreds of pages, in thousands of citations.  Yet, those who want proof in thirty seconds will not find it. 

 

Rather than go through the research, some people take short cuts, asking, for instance, transplant professionals or foreign affairs officials what they have found about organ transplant abuse in China.  Yet, the people to whom they turn are often themselves not in a position to provide the shortcuts requested.   

 

At a US Congressional hearing in June 2016 in which I participated, Dr. Francis Delmonico, a former President of The Transplantation Society, the professional association linking transplant health practitioners globally, was also a witness. Dr. Delmonico acknowledged that there had been transplant tourism into China but testified that under the leadership Huang Jiefu, then head of the Chinese transplant system, change was occurring.  

 

House of Representatives member Chris Smith, co-chair of the Congressional subcommittee before which we both testified asked Dr. Delmonico: 

“He [Huang Jiefu] has been part of the government and he may be a very sincere upright very focused man and wants to get this right. But he works for a government that systematically says things don’t happen [which do happen]. Now, my question would be how do you independently verify?”

 

Dr. Delmonico answered: “… I am not here to verify. That is not my job.”

 

I would not say that independent verification is his job.  What I would say is that there is regrettably sometimes a mistaken attempt at a short cut in this field by reliance on the awareness of transplant abuse in China held by those transplant professionals who make no attempt to investigate that abuse.  

 

Something similar occurs with foreign affairs officials.  Graham Fletcher, a former First Assistant Secretary, North Asia Division, of the Department of Foreign Affairs and Trade, testified at An Inquiry into Human Organ Trafficking and Organ Transplant Tourism conducted by the Human Rights Sub-Committee House of Representatives Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, at Inquiry to which I also testified.  Mr. Fletcher told the Sub-Committee: 

“we [the Department of Foreign Affairs of the Government of Australia] have conducted our own investigations both in China and elsewhere to seek to establish whether the claims made about organ harvesting from prisoners of conscience have any basis, and our conclusion is we have not found evidence that supports them – we have no evidence that prisoners of conscience are being killed in China.”

The Sub-Committee, in their final report in 2018, remarked wryly: “Mr Fletcher did not provide further detail on the nature of DFAT’s own investigations.”

 

I met with Australian Foreign Affairs on this issue a couple of weeks ago while in Canberra. I came away, after my conversations with them, with the understanding that the Department has operational constraints which prevent them from conducting meaningful investigations on the mass killing of prisoners of conscience in China for their organs.  

 

Any visits Embassy officials would make to prisons or hospitals in China would have to be co-ordinated with the Government of China. Embassy officials in China are not free to roam around China on their own and talk to whomever they want wherever they want. 

 

People in China knowledgeable about transplant abuse in the country would put themselves at risk by talking to the Australian embassy about that abuse.  Those who could give information would mostly not want to incur that risk.  The Embassy itself would not want to put people with whom they engage at risk by talking to them.  They refrain from initiating a conversation with anyone if the conversation would put that person at risk.    

Again, I do not reject the notion that there are these operational constraints.  But I note that here too there is regrettably sometimes a mistaken attempt at a short cut by reliance on the awareness of transplant abuse in China held by Foreign Affairs officials who have operational constraints which prevent meaningful investigation of that abuse.

 

Disbelief, unfortunately, is for some a convenient response. Chinese Communists are amenable to changes in some wrongful practices which attract global criticism.  However, their killing of prisoners of conscience for their organs is a subject on which they do not budge. Those who want to pursue the possibility of changes in other practices in China, sometimes find it strategic to put to one side the problem of Chinese organ transplant abuse.     

 

China is politically and economically powerful.  The Chinese Communist Party uses that power to pursue its own agenda.  There are all too many people outside of China who feel compelled for economic or political reasons not to criticize the Party. 

 

Many mechanisms for preventing and remedying foreign organ transplant abuse can be implemented using general terms, without mentioning China.  But it is impossible to be completely effective in combatting transplant abuse in China without reference to China. Yet, a confrontation with China works contrary to the interests of many. 

 

So, the lack of awareness and disbelief about the mass killing of prisoners of conscience for their organs in China, though regrettable, is explicable.  The question is what can be done about it.

 

Changing the laws would help, both in China and abroad. Changing Chinese laws can be done only by the Chinese.  Yet, international concerns can have some impact on how the Government of China behaves.  Avoiding outside complicity in Chinese transplant abuse is something entirely within the power of outsiders.

 

In China, the problem in 2006 when I began this work, was not just an absence of laws. A 1979 Chinese law on medical research and a 1984 law on prisoners expressly allowed for the sourcing of organs of the dead without consent of anyone, provided the family did not claim the bodies.  China, after the initial report that David Kilgour and I wrote, enacted in 2007 a law requiring consent to organ donation, but without repealing either the 1979 or the 1984 law.  As well, the Chinese Communist Party, which runs the legal system, does not apply the law against itself.

 

Abroad, the situation differs depending on whether the state has nationality or territorial jurisdiction.  Civil law countries typically have nationality jurisdiction, meaning that they can prosecute their nationals for crimes committed abroad. Common law countries typically have territorial jurisdiction, meaning that they can prosecute their nationals only for crimes committed on their territory.  To go beyond that, specific extraterritorial legislation is necessary. When David Kilgour and I began our work, this extraterritorial legislation directed against organ transplant abuse existed nowhere.    

 

When it came to transplant tourism into China, those from civil law countries also enjoyed immunity, despite the default application of their laws to nationals abroad, because of the absence of compulsory reporting from health practitioners to health administrators of that tourism. Health practitioners would know about transplant tourists because the organ recipients need anti-rejection drugs on return.  When David Kilgour and I began our work, this compulsory reporting also existed nowhere.

 

There is now an international treaty on the subject matter. The Council of Europe Convention against Trafficking in Human Organs obligates states parties to prohibit its nationals and habitual residents from engaging in organ trafficking whether inside or outside the territory of the state party.  The Convention, since 2015, has been open for signature and ratification, beyond member states of the Council of Europe, to observer states of the Council and to all other states on invitation.  The Convention entered into force in 2018. 

 

To date, thirteen states of the Council of Europe have signed and ratified the treaty – Albania, Belgium, Croatia, Czech Republic, Latvia, Malta, Moldova, Montenegro, Norway, Portugal, Slovenia, Spain, and Switzerland. One observer state has ratified the Convention – Costa Rica and one state which is neither a member nor observer state – Chile, has been invited to do so.  

 

There are also jurisdictions which are not party to the Convention but with the requisite legislation – Israel, Italy, South Korea, Taiwan, and the United Kingdom.  So, there are now at least nineteen jurisdictions with the necessary legislation.  Canada is on the verge of enacting this legislation, just awaiting the last formal steps.  The result is plenty of drafting precedents.

 

Mandatory reporting of transplant tourism by health professionals to health administrators is necessary to operationalize this legislation, allowing for prosecution where it is indicated.  It is also essential for the creation of accurate transplant registries.  Without accurate publicly accessible data on transplant tourism, it becomes impossible to know the scale of the transplant tourism problem any country faces.

 

Since we are here in Australia, I can make a comment about what is happening here.  The Subcommittee report to which I referred recommended extra-territorial legislation penalizing organ transplant abuse.  The Government in 2021 agreed with that recommendation.  The legislation has yet to be introduced.

 

Getting legislation in democratic countries requires public will.  Public will in turn depends on public awareness.  One way all of us can help prevent and remedy organ transplant abuse and organ trafficking is spreading the awareness of the need for that sort of legislation. 

 

David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada.