Leavides Domingo-Cabarrubias | 4 August 2022

The practice of organ harvesting from executed prisoners in China has been the subject of controversy for decades. Researchers and human rights organisations have claimed that bodies of executed prisoners are the principal sources of organ transplant operations performed in China. Human Rights Watch raised human rights and medical ethics violations associated with the practice, citing some cases where executions were deliberately mishandled to ensure that the prisoners were not yet ‘dead’ when their organs were removed. A recent study, Execution by organ procurement: Breaching the dead donor rule in China, looked more closely into what transpires during the procurement of organs of executed prisoners, finding evidence that in many cases, the proximate cause of the donor's death was the removal of the organ. Focusing on the involvement of transplant surgeons during the process of harvesting organs, the study concludes that physicians in the People's Republic of China have participated in executions via organ removal.

Matthew P. Robertson, the lead author of the publication, stressed during a webinar organised by Eleos Justice and Capital Punishment Justice Project that the central question is whether the donors were properly declared brain dead before the procurement of their hearts and lungs. Using transplant-related Chinese-language medical papers published in scientific journals between 1980 and 2020, Robertson and his co-author Jacob Lavee found evidence of problematic brain death declaration, and therefore a probable violation of the dead donor rule (DDR). In medical ethics, the DDR forbids the procurement of vital transplant organs from living donors.  Explaining that brain death can only be determined on a fully ventilated patient, Roberston said that there was evidence that a declaration of brain death was not performed accurately. He explained:

The issue here is that the intubation and respiration is taking place right before organ procurement. This should never happen. In any normal context, the donor is already intubated by the time the transplant surgeons arrive on the scene. So here, they are directly intubating them and then procuring. Thus, the donor could not have been properly declared brain dead.

According to Robertson, 71 of the medical papers published between 1980 and 2015 showed strong evidence that surgeons have executed prisoners by removing their hearts for organ transplantation.

Despite the lack of official and accurate statistics on donation and transplant activity in China, research has shown that transplant medicine in the country started with heavy reliance on organ procurement from executed prisoners. Although Chinese officials continuously denied it, organs were harvested from executed prisoners without consent.  In 1984, China enacted a regulation on the use of dead bodies or organs from condemned criminals, which officially permitted organ harvesting from executed prisoners if the body is not claimed, if the prisoner volunteers for organ donation, or if the family consents. However, these conditions were largely ignored.  In 2005, after decades of denial, the government finally admitted for the first time the widespread practice of organ sourcing from executed prisoners, with up to 95 % of the organ transplants deriving from executions.

China’s booming organ trade and transplant program and its obvious linkage with the country’s extensive use of the death penalty has drawn negative international attention.  The Transplantation Society has noted that China is the only country in the world that still systematically takes organs from executed prisoners for the purpose of transplantation, and that it is scorned by the international community for this practice. Various organisations have in fact expressed concern on China’s use of prisoners in general as organ sources. In 2006, the World Medical Association (WMA) demanded that China immediately cease the practice of using prisoners as organ donors, stressing that prisoners and other individuals in custody are not in a position to give consent freely. This view was similarly expressed by Robertson during the webinar, stating that:

Generally it’s considered unethical under any circumstance to procure organs from prisoners even if they theoretically consent because that consent is not considered informed consent, because they are not free to refuse… So technically any organ procurement from prisoners is going to be considered unethical.

Parliamentary bodies in Europe, the United States, and Australia, as well as the independent China Tribunal, have also called on the Chinese government to immediately put an end to the practice of forced organ harvesting from prisoners.

In 2014, Chinese officials announced that the country would completely cease the use of organs from executed prisonersafter 1 January 2015. However, there were no corresponding changes in China’s organ donation laws. China’s claims that prisoners are no longer being used as organ sources are difficult to corroborate. According to Robertson and Lavee’s article:

It is also unclear whether and to what degree death row prisoners and prisoners of conscience are still being utilized as organ sources. Given the lack of sanctions and accountability for procurement of prisoner organs in the past, the strong financial incentives to continue such activity, and the difficulty of external observers of detecting it, it is unclear why Chinese hospitals would cease engaging in this profitable trade.

Robertson also noted the lack of reliable post-2015 data. He referred to an earlier study he co-authored, which found evidence of systematic falsification and manipulation of official organ transplant datasets in China. In that study, it was shown that some apparently nonvoluntary donors appear to be misclassified as voluntary, and that the voluntary system operates alongside the continued use of nonvoluntary donors who are most plausibly prisoners. A close examination of the data also showed that the apparent prisoner donors were up to seven times more numerous than the legitimate voluntary donors. Robertson stressed that the falsification was not done in a piecemeal or ad hoc way, but was a planned, coordinated, and centralised falsification of numbers.

If executed prisoners, are still being used as organ sources, it is reasonable to believe that the violations of the death donor rule found by Robertson and Lavee are still being committed.

Watch the full discussion here.

Leavides Domingo-Cabarrubias is a Fellow at Eleos Justice and a PhD Candidate at Monash Faculty of Law.