Due to reports of the torture and anguish of prisoners and the secrecy surrounding the death penalty’s application in China, it is virtually impossible to independently verify that any executed prisoners truly gave consent for the use of their organs.[100]

Chinese prisoners are generally not notified of their impending execution until just hours before it occurs.[101] As a result, donor consent is rarely obtained in spite of it being a lawful requirement. [102]The family members of the condemned prisoners are also rarely informed of the execution.[103]

Even when the family members are notified of the execution, they are rarely informed of the prearranged plans for organ extraction. [104] In the rare instances where the family members are notified, they are offered money in advance to authorize the use of the prisoner’s organs. [105] If the family refuses the payment, it is then common for the government to provide the family with a large bill following the execution to recoup losses ranging from food and lodging for the prisoner to the cost of the bullet used to perform the execution.[106]

One death row prisoner was witnessed lying on the floor in solitary confinement with all of his limbs stretched out and shackled to the ground by his wrists, ankles, and even his neck. [107] He was fed one meal a day.[108]  Only after he “consented” to donating his organs was he unshackled from the ground. [109] However, he was still in leg irons and handcuffs.[110]

It has also been reported that prisoners who are healthy and have useful organs are often pushed to the front of the waiting lists for executions.[111] In essence, once a prisoner has been deemed fit for an organ transplant, the prisoner becomes nothing more than a warm object sheltering an organ for some other waiting and paying person.[112]

Chinese ideology

The underlying ideological principles of China’s social and political culture justify the use of organs from executed prisoners. [113]Society as a whole is deemed more important than individual rights. [114] Because of the organ deficit for transplantation and the demand from high-paying foreigners, China justifies the use of these prisoners’ organs for the overall good of the country. [115] The Chinese government considers the use of death row prisoners for organ transplants charity.[116]

The criminals are considered bad people deserving of their death sentence. [117] In producing the death, the prisoners create waste that can be used to help others continue their lives, hence charity. [118] Even hospital and prison employees deem the system of retrieving organs without consent just a way to pay back the state for the expense of the prisoners’ care while incarcerated.[119]

China’s nonexistent organ donation program

Less than one percent of the organs used for transplants in China are harvested from the recipient’s family members or brain-dead donors. [120] China lacks an organized formal system for individuals to volunteer their organs for use after their death. [121]Chinese people are adverse to donating organs based on religious beliefs and out of respect for their elders and ancestors.[122]

Chinese culture insists that regardless of cremation or burial, the body should remain intact after death. [123]Particularly with Buddhist and Confucian beliefs, the bodies must remain whole after death, making true donations very rare or even nonexistent.[124]

China’s secret organ transplant policy

In 1984, the Chinese government issued an official order titled “Provisional Regulations on the Use of Dead Bodies or Organs from Condemned Criminals.” [125]The order served as the sole legal authority regarding the harvesting of organs from executed prisoners.[126]

However, the directive was not law, just a set of orders to carry out the organ transplants to the benefit of the Chinese government. [127] The order only established basic guidance regarding the procedure but failed to adequately address the human rights of the prisoners. [128]The 1984 order was never officially passed by the Chinese Communist People’s Congress, but it served to carry out the government’s demands.[129]

The 1984 order regarding the extraction of organs from executed prisoners stipulated the following requirements:

  1. consent of the prisoner or the prisoner’s family;
  2. procurement of the organ only after the prisoner’s death was confirmed by a supervising official; and
  3. the preservation of absolute secrecy regarding the organ harvesting.[130]

The order also required that medical workers refrain from wearing hospital insignia or drive marked vehicles to or from the executions. [131]In addition, the order states that the organ removal times must be coordinated with crematoriums, so the bodies can be cremated immediately following the procedure.[132]

Even though consent was one of the stipulations in the order, the Chinese government has never produced any evidence confirming a prisoner’s consent to donate his or her organs. [133] Furthermore, a prisoner shackled to the ground twenty-four hours a day is in no condition to offer an informed consent.[134]

An unwritten policy also existed ranking the order in which members of society would be recipients of the organ transplants:

  1. high-ranking government officials and military members;
  2. wealthy overseas Chinese and other foreigners;
  3. wealthy Chinese citizens; and finally
  4. the common citizen.[135]

Next week: China made sale of human organs illegal in 2006 – so why is it such a growing industry?

[100]See Repression, supra note 10, at 11.
[101]Brown, supra note 1, at 1066.
[104]Id. at 1066-67.
[105]Id. at 1067.
[106]Brown, supra note 1, at 1067.
[107]Organs, supra note 4, at 47 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[111]Donny J. Perales, Rethinking the Prohibition of Death Row Prisoners as Organ Donors: a Possible Lifeline to Those on Organ Donor Waiting Lists, 34 ST. MARY’S L.J. 687, 699 (2003).
[112]Organs, supra note 4, at 49 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[113]Brown, supra note 1, at 1082.
[116]Organs, supra note 4, at 44 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[119]See Id. at 25 (statement of Nancy Scheper-Hughes, Project Dir., Organs Watch).
[120]Kirk C. Allison, Ph.D., MS, Mounting Evidence of Falun Gong Practitioners Used as Organ Sources in China and Related Ethical Responsibilities, THE EPOCH TIMES, July 24, 2006, ¶ 4, available at http://en.epochtimes.com/news/36-8-7/44706.html (last visited July 29, 2008).
[121]Repression, supra note 10, at 10.
[122]Brown, supra note 1, at 1080; On a personal note, growing up in a Chinese family has provided me with experience and insight into the Chinese way of showing familial and ancestral respect. When my grandfather passed away a few years ago, I experienced the rituals of preserving and worshipping his body after death. My grandfather’s body was transported from the hospital to a Buddhist temple. At the temple, the family gathered around his body, along with two Buddhist monks, and chanted Buddhist verses for approximately two hours. Afterward, my grandfather’s body remained at the temple until the funeral where he was cremated. My family went back to the temple daily to visit him until the day he was cremated. Everyone in the family spent countless hours making hundreds of water lilies out of gold paper money. We had to make enough to cover his entire body like a blanket. This blanket was burned along with his body. The blanket was meant to be a bed of lilies for my grandfather to float upon in the afterlife. The blanket was made out of gold paper money so that my grandfather would never suffer in the afterlife because he would be surrounded by good fortune.

[123] Repression, supra note 10, at 10.
[124] Organs, supra note 4, at 3 (statement of Fla. Rep. Ileana Ros-Lehtinen, Member, Comm. on Int’l. Relations, Chairwoman, Subcomm. on Int’l. Ops. and Human Rights).
[ 25] Id. at 42 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[126] Hemphill, supra note 29, at 445.
[127] Organs, supra note 4, at 42 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[128] Hemphill, supra note 29, at 445.
[129] Organs, supra note 4, at 42 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[130] Hemphill, supra note 29, at 447.
[131] Id.
[132] Organs, supra note 4, at 52 (translation of “The Provisions on the Entry and Exit of Cadavers and Treatment of Cadavers”).
[133] Id. at 43 (statement of Harry Wu, Executive Dir., The Laogai Research Foundation).
[134] Id.
[135] Id. at 42.