China's Practice of Procuring Organs from Executed Prisoners: Human Rights Groups Must Narrowly Tailor Their Criticism and Endorse the Chinese Constitution to End Abuses
Hemphill, Joan E., Pacific Rim Law & Policy Journal
Abstract: For the past two decades, human rights groups, medical organizations, and the international media have excoriated China for procuring transplant organs from executed prisoners. This practice was first authorized under China's 1984 "Temporary Rules Concerning the Utilization of Corpses or Organs from the Corpses of Executed Criminals" and it is widely used by the Chinese government. Reports from Chinese doctors and media sources reveal significant deficiencies both in the text and application of China's current organ-procurement laws. The lack of clear legal parameters and the absence of enforcement measures have opened the door to problems of interpretation and misapplication, resulting in the physical abuse of prisoners. This situation is further exacerbated by China's proclivity to sell prisoner organs to foreign buyers on the black market. For these reasons, advocacy groups view China's procurement of prisoner organs as an infringement of prisoner rights, and they promote its abolition.
In response to international concern over China's participation in the organ trade, the Chinese government recently enacted the 2006 "Provisions on the Administration of Entry and Exit of Cadavers and Treatment of Cadavers," which prohibit organs from exiting Chinese territory without government authorization. Although it is premature to fully assess the efficacy of this law, the 2006 Provisions fail to modify the 1984 Order, leaving its most significant shortcomings intact. The 2006 Provisions do not regulate organ procurement from prisoner cadavers, nor do they address how organ-removal procedures are conducted or applied. China's present organ-procurement scheme is, consequently, inadequate to protect prisoners from abuse. Human rights groups continue to press for reforms in China's organ-procurement practice, but current lobbying efforts are ineffective because they lack compelling legal and political force in the Chinese system. Human rights groups must provide stronger legal support, and narrow the focus of reform efforts to make a more persuasive argument for the elimination of prisoner abuse. China's constitution provides a viable legal foundation for reform arguments because it requires the Chinese government to preserve and protect human rights. It is binding on all national laws, and it can be implemented to end prisoner abuse by requiring organ-procurement laws to conform to its proscriptions. Instead of pressuring China to enact sweeping legislation and adopt international ethical standards, reform efforts must endorse the application of Chinese constitutional human rights requirements to improve the treatment of prisoners in the organ-procurement practice.
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. …