In 2001, Chinese surgeon Dr. Wang Guoqi testified before the United States Congress that he performed more than 100 operations to remove skin and corneas from executed prisoners.1 Although the practice of procuring organs from prisoner cadavers is legal in China, Dr. Guoqi described ways in which prisoners were abused during the process.2 He emphasized one particular incident in 1995 that has "tortured [his] conscience to no end."3 The incident occurred in the Hebei Province, where Dr. Guoqi and a team of doctors were called to extract skin and kidneys from a prisoner's body.4 During the execution, the guard misfired his gun, shooting the prisoner several inches short of the target, and leaving him convulsing on the ground.5 Although the prisoner was still alive, the supervising official ordered the doctors to proceed with organ removal in a nearby ambulance.6 The prisoner continued to breathe even after both of his kidneys were extracted.7 While officials rushed the kidneys to medical units, Dr. Guoqi and his colleagues began to remove the skin from the prisoner's half-dead body.8 Hearing noises outside and fearing an attack from the prisoner's family, the doctors forced the mangled prisoner into a plastic bag, and left him to die.9 Haunted by this and other memories of prisoner abuse, Dr. Guoqi ultimately refused to participate in the organ-procurement practice.10 He was subsequently forced to submit a pledge not to expose his work, nor to reveal that organs are sold for profit by the Chinese government.11 When Dr. Guoqi left China in 2000, the Chinese government was still procuring organs from prisoner corpses at execution sites.12
Evidence of physical abuse, such as that witnessed by Dr. Guoqi,'3 has prompted international criticism of China's practice of procuring organs from executed criminals.14 Critics of China's organ-procurement practice assert that it compromises the legitimate administration of China's penal process, and results in brutal forms of prisoner abuse.15 Human rights groups press China to reform both the organ-procurement and death-penalty practices, but these efforts unnecessarily expand the scope of the issue beyond the elimination of prisoner abuse, and misguidedly promote China's adoption of international standards on human rights.16 For this reason, a new approach is needed to lend legal support to lobbying efforts, and to present the Chinese government with a more convincing case for reform.
Part II of this Comment outlines China's practice of procuring organs from prisoner cadavers, explaining the Chinese government's strong economic incentive to use prisoner organs for commercial purposes, and detailing human rights groups' criticisms of this practice. Part III asserts that human rights groups' current approach to reforming China's organ-procurement practice is ineffective because it relies on international standards and advocates for broad reforms. Part IV analyzes the legal framework behind China's organ-procurement practice, comparing the recent 2006 Provisions on the transportation of cadavers to China's 1984 Order on the utilization of prisoner corpses, and demonstrating how these laws fail to square with Chinese constitutional principles on human rights. Part V argues that the Chinese constitution must be fully implemented to modify and reform China's organ-procurement laws. Part VI recommends human rights groups target their criticisms at ending the most serious instances of prisoner abuse, and endorsing the application of Chinese constitutional human rights requirements to lobby more effectively for reforms. Part VII concludes this comment.
II. HUMAN RIGHTS GROUPS ASSERT CHINA'S USE OF PRISONER ORGANS RESULTS IN ABUSE BECAUSE IT Is DRIVEN BY ECONOMIC INTERESTS AND AUTHORIZED BY DEFICIENT LAWS
In many parts of the world, there is a wide disparity between the demand and the supply of available transplant organs.17 Confronted with long waiting lists, and the close prospect of death, patients from around the globe are traveling to China to obtain transplant organs for a price. …