Illegal Human Organ Trade from Executed Prisoners in China

Case Study: 632
Case Name: Prison Organs from China
Case Identification: PRISONORGANS



Legal Cluster
Geographic Cluster
Trade Cluster
Environment Cluster
Other Clusters

I.Identification

1. The Issue

“Today, China stands alone in continuing the use of organs of executed prisoners for transplant surgery.”1 International organizations such as the World Medical Association and the World Health Organization regard the sale of human organs as inhumane and unethical. These organizations believe it is essential to address all concerns surrounding illicit organ trade and possibly invoke an international trade mandate to which all nations must adhere. Human rights organizations and numerous former Chinese citizens, like Harry Wu, assert that China uses human organs from executed prisoners to sell for substantial profit. The repercussions resulting from the lack of international laws regulating global human organ trade has caused a worldwide upheaval. Human rights issues encircling the illicit human organ trade as well as the effects of this trade in China and globally should be examined and analyzed.

2. Description

In recent years the rise in demand for organ donation has dramatically increased due to advanced medical technology. The latest technology introduced was a drug helping to control the rejection of the foreign human organ in a patient’s body. This drug, cyclosporine, has revolutionized organ transplantation. It was after the introduction of cyclosporine that China implemented its 1984 rule to allow for organ donation from executed prisoners. Unfortunately, modernization and advancement can facilitate and produce a double-edged phenomenon. The phenomenon related to transplantation is the illicit trade of human organs. The supply of human organs can not meet demands, and as a result, there has been an incredible rise of illegal human organ sales. This section will cover a variety of divergent issues related to human organ trade in China and around the world. I will first discuss the 1984 rule in China regarding human organ donation, and then introduce some of the effects of this ruling.

1984 Rule in China Concerning Organ Donation:
In 1984, China enforced the “Rules Concerning the Utilization of Corpses or Organs for the Corpses of Executed Prisoners.”2 The rule provided “that corpses or organs of executed prisoners could be harvested if no one claimed the body, if the executed prisoner volunteered to have his corpse so used, or if the family consented.”3 China has zero tolerance for crime. The death penalty is obviously legal in China, but what constitutes a crime punishable by death? Amnesty International researcher, Arlette Leduguie, claims that, “criminals are executed for minimal offenses.”4 “In the past years, individuals have been executed for demeanors that would barely justify a custodial sentence elsewhere, pig stealing, or theft, for instance.”5 Amnesty International asserts that the Chinese government is performing executions to expand the organ trade from executed prisoners. According to witnesses in China, criminals are regularly examined to select matches for waiting patients.6 “One prisoner, during his seven year jail term, told how he saw numerous prisoners being medically prepared for organ removal. On the night before the execution, the prison staff would take blood samples.”7

According to David E. Jefferies in his article titled, "The body as a commodity: The use of markets to cure the organ deficit," a Chinese government document explains the procedures used in the extraction of executed prisoners organs generates between 2,000 and 3,000 human organs sold per year out of an estimated 4,500 executed prisoners.8 Amnesty International reports that, “China put more than 1,200 individuals to death in 1999.”9 These figures translate into an average of over forty people per week.10 The explanation for the elevated number of executed prisoners is directly related to the current Chinese Communist Party leaders' decisions to eliminate crime in China. A South China Morning Post article claims that "The executions come after leading law enforcer Luo Gan urged police to strike hard to smash blackness and wipe out evil."11 The rising criminal activity in China is from higher unemployment rates and inflation due to economic development and reform. The Chinese government wants to extinguish crime before it becomes endemic.

“Throughout the 1990s, China executed more people than the rest of the world combined.”12 Human rights organizations like Amnesty International and Human Rights Watch/Asia are outraged by the alleged human organ donation from China’s executed prisoners. In the article titled, Organ Procurement and Judicial Execution in China, the author states: “If criminal trials should be a matter of public record, the Chinese government should promptly comply with a recent formal request by the United Nations Committee Against Torture that it provide precise statistical data concerning the number of persons sentenced to capital punishment and executed in China. The authorities should also annul forthwith all "internal" directives ordering the secrecy of such statistics.”13 The negative repercussions from the reliance on executed prisoners to supply vital organs, exceedingly outweigh the feasible greater good. The greater good is compromised because the issue surrounding organ donation becomes complicated by the high cost obtained from the executed prisoners' valuable organs. The high cost involved has led to executions in China taking place in order to accommodate human organ recipients' needs or desires, not according to the prisoner's family's wishes.

Effects of the 1984 Rule:
The Chinese government fervently denies the existence of this precept, but the government could be the party responsible for the illegal sale of executed prisoners’ organs. Many factors support this claim. The Chinese government’s official stance on this issue is as such; persons trading in human organs will be punished according to Chinese law. This promulgation, though, is convoluted. There is no doubt as to the existence of China’s 1984 rule concerning executed prisoners’ organs, but the official stance issued by the Chinese government is vastly divergent. Which side presents an accurate picture of organ “donation” in China? Chinese doctors interviewed by various medical and human rights groups endorse allegations against the government. Chinese physicians and witnesses affirm that the Chinese government executes its prisoners by one bullet to the head to mitigate body tissue damage thus saving the valuable organs. Nancy Scheper-Hughes writes about a man of Chinese descent, Mr. Lin, who immigrated to the United States. Mr. Lin elaborates on a visit to a Chinese medical facility stating that, “next to his friend was a wealthy and politically connected professional man who told Mr. Lin that he was waiting for a kidney transplant. The wealthy man knew the kidney would arrive after a prisoner was executed that morning.”14
Wealthy individuals in China, Taiwan, and Hong Kong are able to procure organs at will, for a cost. "But the very idea of organ scarcity has to be questioned. It is an artificially created need invented by transplant technicians and dangled before the eyes of the sick, aging, and dying population. And it is a scarcity that can never under any circumstances be satiated, for underlying the need is the quintessentially human denial and refusal of death."15 The best possible solution in regards to organ transplantation and donation, might be for humans to deal with the fact that we are all mortal, and this issue crosses most cultural boundaries.

Per year, 300,000 people receive organ transplants worldwide.16 The supply does not match the demand, generating a massive global search for possible organ donors. In desperation, many individuals resort to illegal means to obtain an organ for transplantation, such as using black market trade to purchase executed prisoners' organs. As previously mentioned, Amnesty International asserts that more than 4,500 executions occur every year in China. Many researchers argue that executions in China are organized around how to extract of the organs in the most efficient manner. Hence, it is fair to assume that most of these prisoners killed by the death penalty, if not all killed, have their organs removed and sold. The numerous non-Chinese government articles written related to this case, state that the sale of human organs can procure an upwards amount of 30,000 U.S. dollars per organ. In Ms. Scheper-Huges article, she states that individuals from such Middle Eastern countries such as, Kuwait, Saudi Arabia, Oman, and the United Arab Emirates travel to India to obtain human organs, while persons from Asia will procure their organs from China.

3. Related Cases:

TED Cases:

Body Case
Kidney Case
Prison Case

Other Information Sources:
New Cannibalism
Bellagio Task Force
Amnesty International

Keyword Clusters:
(1): Trade Product = HUMAN ORGANS
(2): Industry = MEDICAL
(3): Environmental Problem = MORAL


4. Author and Date: Dena Kram, April 4, 2001

II.Legal Clusters


5. Discourse and Status:
Disagreement and Allegation

6. Forum and Scope: China and Unilateral

7. Decision Breadth: 1

8. Legal Standing: Law

One of the many problems encompassing the use of executed prisoners in China, is the lack of transparency. China vehemently denies the existence of this domestic law, and this facilitates further controversy surrounding this issue. One possible reason for the denial of this 1984 law could be due to economic justification. China does not want to acknowledge that the country gains financially from executed prisoners’ organs, for this admission would generate more contention and protest from human rights organizations. If China is trading human organs, then this trade should be regulated to achieve transparency and fairness as well as, the chance to guarantee that prisoner or prisoners’ family’s wishes are upheld.

According to the World Health Organization, “The human body and its parts cannot be the subject of commercial transactions. Accordingly, giving or receiving payment for organs should be prohibited.”17 World medical associations have explicit language regarding the moral and ethical reasoning of why this trade should be illegal, but no international laws have been implemented. Medical associations around the world, as well as human rights organizations, feel that the sale of human organs is a flagrant violation of human rights. Human rights activists report that China sells the extracted organs to medical visitors, from other regions such as Taiwan and Hong Kong, for up to 30,000 US dollars. A Sunday Telegraph article by Olga Craig presents a court case that occurred in 1998 regarding the illegal sale of human organs in Hainan Island, China. In this article, Harry Wu, a former Chinese citizen who attempts to educate the world about the inhumane acts occurring in China, was approached by a man who wanted to sell him organs from executed prisoners. The man, Mr. Wang, said he “could sell Mr. Wu fifty prisoners on death row over the next year. His price list was as follows: $25,000 for livers, $20,000 for kidneys, and corneas and pancreases for $5,000 a pair.”18

Numerous international medical associations as well as human rights organizations have been concerned about the growing illicit human organ trade. “The World Health Organization has found the sale of human organs to violate the Universal Declaration of Human rights as well as the Constitution of the United States.”19 The WHO states that “the human body and its parts cannot be the subject of commercial transactions.”18 The sale of human organs violates international human rights decree, but there are no international laws to give a mandate authority to predicate the Chinese law regarding human organ trade. Therefore, as no international law stands to be enforced, no human rights organizations that can order the Chinese government to comply to an international declaration. This could be a consequential aspect of international health associations’ failure to force China to comply. Because “the language used by the World Health Organization in the decree is discretionary and fails to establish a process for investigation and discipline.”20 The World Health Organization must devise an international law and investigative unit to regulate human organ trade, either illicit or licit, no matter. Then an international task force must be implemented to compel nations in transgression to adhere to these laws or encounter the ramifications of these violations.

III.Geographic Clusters

9. Geographic Locations

a. Geographic Domain: Asia
b. Geographic Site: East Asia
c. Geographic Impact: China

10. Sub-National Factors: No

11. Type of Habitat: Many


IV.Trade Clusters

12. Type of Measure: Export Ban

13. Direct v. Indirect Impacts: Direct

14. Relation of Trade Measure to Environmental Impact

A. Directly Related to Product: Yes, Human organs
B. Indirectly Related: No

C. Not Related: No
D. Process Related: Yes, Moral

15. Trade Product Identification: Human Organs

16. Economic Data

“Patients said they receive dialysis and preliminary tests at the hospitals. The tests cost about $30,000, with an additional $35,000 for follow-up treatment. They also spend around $30,000 on medicine.”21 “The operation cost $100,000, bring total cost for organ transplantation to an estimated $195,000, to be paid at the time of the operation.”22

In China, the prison system is vastly divergent from the system in the United States. Chinese prisoners' families are responsible for payment of the prisoners' time incarcerated. The family will pay for the entire duration of stay in prison and if the prisoner is to be executed, the family will not only compensate the government for the bullet, but remunerate the funeral arrangements as well. The Chinese government's policy makes prison time extremely taxing for the prisoners' families. Citizens of China believe that incarcerated individuals are an incredible burden to society due to the extreme financial burden they cause the family. Having a family member imprisoned not only causes a great financial burden, but mental anguish as well. Quite often the Chinese Communist Party will apply additional pressure onto the family by controlling the family's mobility. This can be done by limiting changes of receiving a promotion at work, or by controlling the family's ability to move into better housing.

17. Impact of Trade Restriction: Medium

18. Industry Sector: Medicine

19. Exporters and Importers: China and Worldwide

Trade Regulation Information:
“Human Rights Watch/Asia urges the Chinese medical establishment to formulate and adopt its own code of ethical conduct, to include among other items a provision expressly barring health professionals from participation in any form of judicial execution-related organ transplantation activity." 23 By most countries standards today, the death penalty is considered a cruel and inhuman act. The European Union believes that the China and all countries still practicing the death penalty are barbaric. The coercion of Western ideals onto the Chinese government regarding their choice to sanction the death penalty, is not justifiable.
Western ideals should not be pervasive in the argument against the death penalty. The decision to enact the death penalty for retribution of deplorable crimes is a choice that each independent country has. Human rights organizations around the world wish to limit China's maneuverability around the issue of the death penalty due to the controversy that encompasses the execution of prisoners and human organ trade. The Chinese government believes that the death penalty is necessary to enforce their laws and for the citizens of China to retain a peaceful existence.

The language associated with transplantation documentation from the world health and medical associations fail to establish a process for investigation and discipline. The Bellagio Task Force research, “concluded that the existing social and political inequities are such that commercialization would put the powerless and deprived at grave risk.”24 If human organs are to be bought and sold globally, then the World Health Organization (WHO) should become a major actor in enforcing trade regulations. The guidelines the WHO would set forward should be then recognized and facilitated by the World Trade Organization (WTO). The principal objective of the General Agreement on Tariffs and Trade (GATT), which is under the supervision of the WTO, is to provide the international community with trade licensing that is “simple, transparent, and predictable, so as not to become an obstacle of trade.”25 The World Trade Organization’s goal is to “improve the welfare of the people of the member countries.”26 If China continues to secretly sell executed prisoners’ organs, then the aim of the WTO and GATT cannot be met with assurance. China’s human organ trade from executed prisoners violates these agreements, as well as other international organizations. Human rights organizations are outraged and demand that China discontinue this brutal, but “lawful” practice. If an international association, such as the WTO, regulated organ trade, then human rights organizations would be able to take their issues up with that specific international association.

There are no global human organ transplantation associations ruling over current trade issues and currently no international protection laws exist as well. The nonexistence of an international law that forces countries to comply to one mandate regulating global organ donation causes a plethora of dilemmas. Problems stem from the fact that no independent organization regulates international human organ donation. Lack of regulation in conjuncture with augmented demand and an inadequate scale of supply, makes human organs are a rare commodity. Hence, black market trade facilitates human organ 'donation' and allows for the possibility of a further illegal activities. Due to lack of supply, organ trade has become more and more prevalent for disadvantaged individuals from India, South America, and the Middle East to sell their organs to the highest bidder. Countries like India and Brazil are allowing the commodification of human organs because the transplantation surgery is often performed in the domestic hospital, bringing in much needed revenue to the hospitals. No law has made it illegal for these disadvantaged individuals to commodify their bodies.

There are no trade measures, per se, regarding the illegal trade of human organs from China. In the US there are numerous laws regulating transplantation. For example, the 1968 Uniform Anatomical Gift Act and the 1987 revision of this law, The National Organ Transplant Act. Neither law mentions the legality around the importation of human organs from non-consenting individuals.27 Many nations do not want the US or any international organization such as the United Nations or the International Medical Association to regulate their trade and sale of human organs. David E. Jefferies argues that free trade can generate terrible consequences. Organ donation, if not regulated, could led to illegal procurement of human organs or organ harvestation. Mr. Jefferies states that the US does not allow the harvesting of human organs, as it is legal in both China and the European Union.28


Presumed Consent:

In the EU, they have adopted a consensus of “presumed consent.” Presumed consent can be construed as the approval from the deceased to donate their organs. "This system presumes the decedent has consented to the harvest of his or her organs following death unless that decedent has recorded his or her objection to such a harvest."29 Other countries that follow this mandate are, Brazil, Argentina, Chile, and Yugoslavia. A divergent notion of what “presumed consent” is defined in such countries as France, as the belief that organ donation is postulated upon death unless the deceased “opted-out” of the presupposed organ donation. "Organs may be removed for therapeutic or scientific purposes from cadavers of persons who have not, during their lifetime, indicated their refusal to permit such a procedure. However, where the cadaver is that of a minor or of an incompetent person, organs may be removed for transplantation purposes only with the authorization of the person's legal representative."30 Austria and Belgium have similar laws as well, while the United States is completely opposite.

Current Situation in the United States:
In the United States, organ donation is on the rise, jumping 16 percent from 2000.31 "The increases were much more dramatic among living donors. Still, cadaver donors account for the bulk of transplants because each cadaver can donate several organs."32 In April,2001 the Department of Health and Human Services unveiled an initiative encouraging individuals to donate organs, and the growing trend in the United States is for healthy individuals to donate their organs to family members. With the new initiative to promote organ donation and transplantation and a greater awareness of the enormous need for human organs, the United States should experience a steady rise of donation.


V.Environment Clusters

20. Environmental Problem Type: Moral

21. Species: NA


22. Resource Impact and Effect: High and Product

23. Urgency and Lifetime: Low and 70 years

24. Substitutes: Artificial, Human or Animal Organs


VI. Other Factors

25. Culture: Yes

26. Trans-Boundary Issues: No

27. Rights: Yes

Please feel free to email me with:
Questions or Comments

28. Relevant Literature

End Notes:
1. Scheper-Huges, Nancy. "Postmodern cannibalism; black market trade of human organs." July 29, 2000
2. The Bellagio Task Force Report on Transplantation, Bodily Integrity, and the International Traffic in Organs. www.icrc.org Transplant Proceedings (1997; 29: 2739-45).
3. ibid.
4. Craig, Olga. Sunday Telegraph. Focus: "The Butchers of Beijing." March 1, 1998
5. ibid.
6. ibid
7. ibid
8. Jefferies, David E. "The Body as a Commodity: The Use of Markets to Cure the Organ Deficit." January 22, 1999
.
9. ibid.
10. _________, “Executions top 1,200 in one year.” South China Morning Post. March 24, 2001. www.scmp.com.
11. _________, "89 Criminals executed nationwide in single day." South China Morning Post. April 13, 2001. www.scmp.com.
12._________, “Executions top 1,200 in one year.” South China Morning Post. March 24, 2001. www.scmp.com.
13. Ibid.
14. Jefferies, David E. "The Body as a Commodity: The Use of Markets to Cure the Organ Deficit." January 22, 1999
.
15. Scheper-Huges, Nancy. "The New Cannibalism." Bellagio Task Force Report on Transplantation, Bodily Integrity, and the International Traffic in Organs. 1997.
16. Ibid.
17. Craig, Olga. Sunday Telegraph. Focus: "The Butchers of Beijing." March 1, 1998.
18. The Bellagio Task Force Report on Transplantation, Bodily Integrity, and the International Traffic in Organs. www.icrc.org Transplant Proceedings (1997; 29: 2739-45).
19. Ibid.
20. ibid.
21. Chan, Quinton. "Patients in execution rush; China’s Labor Day Killing promise ‘flood of transplant organs’; Executions prompt rush of Hong Kong Kidney Patients.” South China Post Ltd. April 30, 1995.
22. Ibid.
23. _______, “Organ Procurement and Judicial Execution in China.” August 1994. Vol. 6. No. 9.
24. _______, www.wto.org. March 19, 2001.
25. Ibid.
26. ibid.
27. Jefferies, David E. "The Body as a Commodity: The Use of Markets to Cure the Organ Deficit." January 22, 1999.
28. Ibid.

29. ibid.
30. ibid.
31. Associated Press. "Living Donors Set Mark for Organ Transplants." The Washington Post. April 17, 2001.
32. Ibid.


References Cited:

Associated Press. "Living Donors Set Mark for Organ Transplants." The Washington Post. April 17, 2001.

Chan, Quinton. Patients in Execution Rush; China's Labor Day Killings Promise 'Flood of Transplant Organs.' South China Morning Post. www.china.scmp.com (April 30, 1995).


Craig, Olga. The Butchers of Beijing. Sunday Telegraph. The Telegraph Group Limited. (March 1, 1998).

Hedges, Stephen J. and Gaines, William. Donor bodies milled into growing profits. Chicago Tribune article. http://chicagotribune.com/news/nationworld/article/0,2669,ART-44908,FF.html (May 21, 2000).

Jefferies, David E. The Body as a Commodity: The Use of the Market to Cure the Organ Deficit. Indiana: Law School WebTeam. http://www.law.indiana.edu/glsj/vol5/no2/13jeffer.htm (January 22, 1999).

National Attorneys' Committee for Transplant Awareness, Inc., Organ and Tissue Donation and Transplantation: A Legal Perspective. http://www.transweb.org/reference/articles/donation/nacta.html (January 28, 2001).

National Organ Transplant Act of 1984 http://web.organselling.com/~htk/documents/1984.act.pdf (January 28, 2001).

Scheper-Hughes, Nancy. Postmodern cannibalism; Black Market Trade of Human Organs. Information Access Company, a Thomson Corporation Company. Page 16; ISSN: 1097-5268. (June 22, 2000).

Scheper-Hughes, Nancy. The Global Traffic in Organs for Transplant Surgery. Berkeley: UC Berkeley Press. (May 14, 1998).

Scheper-Hughes, Nancy. The New Cannibalism. www.soros.org. (January, 28, 2001).

South China Morning Post. www.china.scmp.com (March 24, 2001).

The Bellagio Task Force Report on Transplantation, Bodily Integrity, and the International Traffic in Organs. www.icrc.org Transplant Proceedings(1997; 29: 2739-45).

The Irish Times. City Edition. The Organ Trade. (July 5, 1999).

The World Flag Database. Image of Chinese Flag. http://www.flags.net.


University of Pittsburgh Medical Center. Organ Transplant System Chronology. http://www.upmc.edu/NewsBureau/lisa/chronology.htm (January 28, 2001).

Weiser, Benjamin. US Judge Voids Charges Two Tried to Sell Organs of Chinese Prisoners. The New York Times, Late Edition. Section B; Page 1; Column 2; Metropolitan Desk. (March 16, 1999).

Wright, Karen. The Body Bazaar; the Market in Human Organs is Growing. Information Access Company. Walt Disney Corporation. No. 10, Vol. 19, Pg. 114; ISSN: 0274-7529.



1/2001