by David Matas
Presented to a public forum, University of South Australia, Adelaide, 28 June, 2015
I want to focus on seven new developments. There is new legislation in Italy and Taiwan, a study of proposed legislation in South Australia, an upcoming conference in China, forced blood testing of Falun Gong practitioners who are not subject to detention, a study engaged by the World Health Organization and a recent Council of Europe Convention.
The Italian Senate on March on March 4, 2015 passed a bill which provides that any person who trades, sells or manages illegally trafficked organs from living persons would serve a prison term of 3 to 12 years and pay a hefty fine from 50,000 to 300,000 euros. The bill sets out a punishment for whoever publicly encourages or advertises the selling of organs or transplant tourism. Doctors who promote or assist patients to travel to obtain an organ illegally would face lifetime disqualification for violating medical ethics.
The bill was driven by evidence of organ transplant abuse in China. Senator Maurizio Romani is quoted as saying, in answer to the question, “where do China’s 10,000 transplanted organs a year come from?”:
“The answer is dramatic … Especially practitioners of the spiritual discipline Falun Gong are killed for their organs. I use the term cannibalism for this matter … We in Italy can’t stop these violations … But, we have the duty to make every effort in order not to be accomplices to this.”
Senator Ivana Simeoni said:
“There are documents which dispel any doubt [about the sourcing of organs from practitioners of Falun Gong]… Only to think about this commoditization of the human body makes me shiver,”
The bill has to be enacted by the Chamber of Deputies for it to become law. It is scheduled to go to the Chamber of Deputies this fall.
The Taiwan legislature, the Yuan, on June 12, 2015, amended The Human Organ Transplantation Act to prohibit the use of organs from executed prisoners, as well as the sale, purchase and brokering of organs. The law bans transplant tourism. Additionally, doctors involved in illegal organ transplants could lose their license.
The Act further stipulates that patients who get organ transplants overseas must provide legal proof of the source of the organs in order to be eligible for state funded medical after care in Taiwan. The Act thus prohibits Taiwanese from receiving organs from unknown sources.
Democratic Progressive Party Legislator Yu Mei nu said that many Taiwanese go to China for illegal organ transplantations. She added that the Chinese regime is actively involved in the organ trade, which depends heavily on the harvesting of organs from living Falun Gong practitioners. She continued:
“We hope to effectively deter organ trafficking and its sales with this amendment, … That is why the law was amended to require those who have received organ transplants abroad to provide information to domestic hospitals where they are to receive post transplant treatment about where the surgery was done and who the surgeons were, … The domestic hospitals then have to report the cases they deal with,”
The effect of this law, according to Theresa Chu, spokesperson for the Falun Gong Human Rights Legal Team, is to prohibit Taiwanese from going to China for organ transplants. Legislator Hsu Shao ping of the Kuomintang commented:
“Those who harvest organs from living people and sell them for profit are committing a crime against humanity according to International Criminal Law.”
Tien Chiu chin, a Taiwanese legislative member from the Democratic Progressive Party and sponsor of the resolution said:
“The Act clearly forbids organ trafficking, sales, and transplant tourism and stipulates penalties. It also bans the use of organs from death row prisoners. Taiwan’s organ transplant regulations have reached international standards,”
3. South Australia
The Parliament of South Australia established a Joint Committee on the Operation of the Transplantation and Anatomy 1983 to determine whether the Act should be amended to address trafficking in human organs. Written submissions are to be received no later than July 17, 2015.
Member of the New South Wales Parliament David Shoebridge introduced into that Parliament proposed legislation to prohibit any person from
a) entering into a commercial transplant arrangement,
b) removing tissue from the body of another person, whether living or deceased, without consent,
c) consenting to the use of tissue removed from the body of another person, whether living or deceased, for the purpose of its transplantation to the patient if the tissue was removed without consent, and the patient knows or is reckless as to that lack of consent.
The proposed legislation requires medical practitioners and nurses who provide services to a patient and have reasonable grounds to suspect that tissue has been transplanted to the patient to report to the appropriate authority
(a) the name of the patient,
(b) when and where the medical practitioner or nurse provided services to the patient, and
(c) the grounds for suspecting that tissue has been transplanted into the patient.
Any patient who consents to the transplantation to the patient of any tissue must report to the appropriate authority the date, location and nature of the treatment in connection with which the tissue was transplanted to the patient.
The proposed legislation has extraterritorial effect. The law applies where either the person committing the prohibited act or the person from whom the tissue is removed is ordinarily resident in New South Wales, even where the act itself occurs outside New South Wales. I suggest that the South Australia Parliament should enact legislation patterned on that proposal.
4. China Conference
Ostracism has been a vehicle for change in China. The China Medical Tribune reported the refusal to allow 35 Chinese participants for ethical reasons to attend the World Transplant Congress in San Francisco in July 2014. It also noted that for the most recent Hangzhou, China transplant conference “many overseas transplant experts failed to attend”. A year before, in October 2013, the China Transplant Congress, also held in Hangzhou, had a raft of foreign expert attendees.
The NGO Doctors against Forced Organ Harvesting (DAFOH) on October 20th, 2014 released a statement which provided that
“we would consider it unethical for any foreign transplant professional to attend this transplant congress in Hangzhou given the rampant and unrepentant transplant abuse in China, unless the person is going with the express and sole purpose of speaking out against it.”
This statement, along with other developments, would have been a drag on overseas transplant expert attendance.
The refusal to allow 35 Chinese participants for ethical reasons to attend the World Transplant Congress in San Francisco in July 2014 and failure of many overseas transplant experts to attend the Hangzhou, China transplant conference on October 2014 had a profound impact on Chinese transplant officials. Many attendees to the 2014 Hangzhou conference were likely asking where all the overseas transplant experts were. Those doctors who applied to attend and participate in the World Transplant Congress in San Francisco in July 2014 and were rejected, and their colleagues who knew they were applying to attend, also needed an explanation.
The Communist Party may have felt that they could ignore the evidence of the killing of Falun Gong for their organs. However, they could not ignore the fact that Chinese transplant doctors were denied admission to an international transplant congress or that foreign transplant doctors who had come before to China were no longer coming.
In response to this ostracism, the Communist Party/State made no substantive changes but did make a wide variety of contradictory statements about how the situation either is better now or would get better in the future. I have set out these statements, at length, in a talk I gave in April, 2015 in Bern, Switzerland to the International Society of Human Rights. The bottom line driving all the remarks was a desire to end the ostracism. The peer pressure of the international profession at the very least got the attention of Chinese authorities in the way that no other initiative had.
There is a Chinese transplant conference scheduled for 6 8 August 2015 at East Lake in Hubei Province at the International Conference Centre. The propaganda flowing out of the Party has had an effect on at least some of the international transplantation profession many of whom plan to attend this Conference.
While we will not know for sure until the August conference has come and gone if the peer pressure from the global profession will collapse, those are the early signs. That collapse would be regrettable.
The criteria for reconnection between the Chinese and international transplant community should be these:
a) an admission of past wrongdoing, including full disclosure of the sourcing of organ transplants in the past;
b) a commitment to bring to justice all perpetrators of past organ transplant abuse and commencement of proceedings;
c) expulsion from the Chinese Medical Association of transplant professionals who can not establish beyond a reasonable doubt that their sourcing of organs is proper;
d) cooperation with an international investigation into present and past sourcing of organs for transplant;
e) publication of present and past death penalty statistics;
f) public access to the past and present aggregates for the four Chinese transplant registries – lung, liver, heart and kidney;
g) full, independently verifiable transparency of current sourcing of organs for transplant;
h) establishment of a system of traceability of sources for transplants and use of that system; and
i) cooperation with an outside, independent verification system for compliance with international standards.
5. Forced blood testing of those not detained
Systematic blood testing and organ examination of detained Falun Gong practitioners has been commonplace from 2001, throughout China. The police, beginning in April 2014, have engaged in forced blood testing of practitioners of Falun Gong not in detention.
The practitioners have been arrested in their homes or on the street, taken to local police stations for forced blood tests and then released. There has been a concentration of these reports of forced blood testing in in Guizhou and Liaoning provinces, but there have also been reports of these tests elsewhere in China.
These tests are presumptively for organ harvesting, unless the authorities provide an alternative explanation, which they haven’t done. China has been closing its re-education labour camps which housed primarily Falun Gong. Some, but not all, of those held in labour camps have been moved to other detention facilities.
Forced blood testing of the undetained Falun looks to be an adaptation to the closing of the labour camps. The labour camps were a vast forced organ donor bank. If authorities can have that donor bank when practitioners are living at home, then they don’t need to keep the practitioners in detention.
This evolution is typical of Communism. Things change but they don’t get better. They just stay the same or get worse in a different way. Author Ethan Gutmann said about the forced blood testing of Falun Gong not in detention: “This is a truly alarming development”.
6. World Health Organization
The World Health Organization Executive Board in January 2015 passed a resolution which stated:
“The Executive Board, having considered the report by the Secretariat on blood and other medical products of human origin,
(3) recognized that protection of the donor is a prerequisite in order to meet the needs of patients for access to safe medical products of human origin, which is of high importance in the context of access to health and universal health coverage;
(5) recognized that global consensus on the donation and management of medical products of human origin intended for human clinical application, based on good governance mechanisms, is needed in order to protect the fundamental human rights of donors;
(6) further recognized that appropriate standards to guarantee quality and safety of medical products of human origin and to ensure traceability, vigilance, surveillance and equitable access to these products are essential for the well being of recipients;
(7) requested that the Director General convene consultations with Member States and international partners, to support the development of global consensus on guiding ethical principles for the donation and management of the mentioned medical products of human origin; good governance mechanisms; and common tools to ensure quality, safety and traceability, as well as equitable access and availability, as applicable, to result in a document to be submitted to the Seventieth World Health Assembly for its consideration.”
The Seventieth World Health Assembly is scheduled for May 2017 in Geneva, Switzerland.
We need to be able to track back an organ to its donor in order to determine whether the donation was voluntary. Traceability would allow us to do this.
7. Council of Europe
Both the United Nations and the Council of Europe have treaties on human trafficking which prohibit the removal of organs for sale without consent. The Council of Europe has in addition a specific Convention on organ trafficking. The UN treaty is a protocol to the Convention against Transnational Organized Crime. The protocol entered into force in December 2003. The Council of Europe Convention entered into force in December 2005.
The Council of Europe Convention against Trafficking Human Organs is much more recent. It opened for signature in March this year, 2015. It has not yet entered into force.
The first Council of Europe Convention states simply in Article 18:
“Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct contained in article 4 of this Convention, when committed intentionally.”
Article 4 contains the definition of trafficking, which included organ trafficking.
This provision is similar to a provision in the UN Protocol. The Protocol states:
1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally.”
The Council of Europe Convention on organ trafficking can be signed by the member states of the Council of Europe, the European Union and the non member states which enjoy observer status with the Council of Europe. It is also can be signed by any other non member state of the Council of Europe upon invitation by the Committee of Ministers.
It may well be that not every aspect of transplant tourism is encompassed by the two Council of Europe Conventions and the UN Protocol. Nonetheless, all these instruments, I am confident, encompass travel for transplantation which involves the purchase of an organ sourced from a prisoner of conscience killed for the organ.
The Council of Europe organ trafficking convention is a lot more specific about the offences which need to be enacted than the treaties on human trafficking. The organ trafficking convention provides:
“Article 4 – Illicit removal of human organs
1 Each Party shall take the necessary legislative and other measures to establish as a criminal offence under its domestic law, when committed intentionally, the removal of human organs from living or deceased donors:
b. where, in exchange for the removal of organs, the living donor, or a third party, has been offered or has received a financial gain or comparable advantage;
c. where in exchange for the removal of organs from a deceased donor, a third party has been offered or has received a financial gain or comparable advantage.”
Article 7 – Illicit solicitation, recruitment, offering and requesting of undue advantages
1 Each Party shall take the necessary legislative and other measures to establish as a criminal offence under its domestic law, when committed intentionally, the solicitation and recruitment of an organ donor or a recipient, where carried out for financial gain or comparable advantage for the person soliciting or recruiting, or for a third party.
2 Each Party shall take the necessary legislative and other measures to establish as a criminal offence, when committed intentionally, the promising, offering or giving by any person, directly or indirectly, of any undue advantage to healthcare professionals, its public officials or persons who direct or work for private sector entities, in any capacity, with a view to having a removal or implantation of a human organ performed or facilitated, where such removal or implantation takes place under the circumstances described in Article 4, paragraph 1,….
3 Each Party shall take the necessary legislative and other measures to establish as a criminal offence, when committed intentionally, the request or receipt by healthcare professionals, its public officials or persons who direct or work for private sector entities, in any capacity, of any undue advantage with a view to performing or facilitating the performance of a removal or implantation of a human organ, where such removal or implantation takes place under the circumstances described in Article 4, paragraph 1 ….”
Both Council of Europe Conventions address specifically extraterritoriality. Both Council of Europe Conventions though limit extraterritoriality to nationals. They do not set out universal jurisdiction offences.
On extraterritoriality, the UN Convention and Protocol are different from the two Council of Europe Conventions. The Council of Europe Conventions require it, using the word “shall”. The UN Convention and Protocol allow it but do not require it, using the word “may”.
The Council of Europe Convention against Trafficking in Human Organs, in my view, needs two changes. One is compulsory reporting. As noted, the Taiwanese legislation requires reporting. There is compulsory reporting language in proposed Canadian and French legislation. The link to the proposed Canadian law is this
http://www.parl.gc.ca/content/hoc/Bills/412/Private/C 561/C 561_1/C 561_1.PDF
The link to the proposed French law is this:
The second change I would propose to the Council of Europe Convention is to change Article 10(1) to add (f) “by a person who is present in its territory” and to modify 10(6) to take out the words “solely on the basis of his or her nationality”. This change would take organ trafficking an international or universal jurisdiction crime so that anyone physically present in the territory could be prosecuted, whether a national or not.
This issue, whether the draft Convention should create an international offence of universal jurisdiction, caused division within the Council at the drafting stage, with 18 states supporting excision of the quoted words and 20 opposed. Because excision could not get majority support, I suggest that the Convention have an optional protocol with the quoted words excised and the proposed words added. The willing states could then sign the protocol.
Both of the amendments I propose are in my view essential to the combat against transplant tourism. It is striking that the second should be so controversial, cleaving Europe in half. The division illustrates the gap in the field. Not only in Europe, except for Spain, is the legislation not in place. There is no agreement in principle that it should be in place.
What are the action items for Australia which flow from these developments? One is legislation in South Australia and, for that matter, in all states patterned on what Member of Parliament David Shoebridge has proposed for the Parliament of New South Wales.
A second is continuing a practice of non-contact and non-cooperation between Chinese and foreign transplant professionals until the criteria set out earlier are met. I note that Australian Jeremy Chapman is a former President of the Transplantation Society and that Australian Philip O’Connell is the current President.
A third is for Australia to join the consultations hosted by the World Health Organization in order to promote robust ethical principles on organ transplantation, good governance mechanisms, and common tools to ensure traceability of organs. A fourth is Australian adhesion to the Council of Europe Convention on Organ Trafficking. Australian should request an invitation by the Council of Europe Committee of Ministers to join this Convention.
Impacting on the Communist Party of China may seem, from the perspective of Adelaide, to be a daunting task. We must remember that our primary audience in our efforts is not the Communist Party of China, but rather the family, friends and co-practitioners of the victims. Whatever else we manage to achieve, we should strive to ensure that the families, friends and co-practitioners of the victims know that we know of the victimization and are doing our best to combat it. If we can do that, we will have at least achieved something.
David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada