Washington International Law Journal


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.

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