Latest development of legal regulations of organ transplant in China

Journal International de Bioethique

Volumn 19, Issue 4, 2008, Pages 61-81

  Ding, Chunyan ^a  

^a UNIVERSITY OF HONG KONG   (Hong Kong)

Author keywords

[No Author keywords available]

Indexed keywords

ADOLESCENT; ARTICLE; CADAVER; CHINA; COMMERCIAL PHENOMENA; COMPARATIVE STUDY; DONOR; ECONOMICS; HUMAN; INFORMED CONSENT; LEGAL ASPECT; ORGAN TRANSPLANTATION; PRISONER; PUNISHMENT; TRANSPLANTATION;

ADOLESCENT; CADAVER; CAPITAL PUNISHMENT; CHINA; COMMERCE; HUMANS; INFORMED CONSENT; ORGAN TRANSPLANTATION; PRISONERS; TISSUE AND ORGAN PROCUREMENT; TISSUE DONORS;

EID: 67449107899     PISSN: 12877352     EISSN: 12877352     Source Type: Book Series    
DOI: 10.3917/jib.194.0061     Document Type: Article

References (41)

1. There are five articles concerned with the Chinese organ transplant practice in Westlaw Database so far: Joan E. Hemphill (2007), "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" Pacific Rim Law and Policy Journal 16 p.431;.
2. Sunny Woan (2007), "Buy Me a Pound of Flesh: China's Sale of Death Row Organs on the Black Market and Market and What Americans Can Learn from It" Santa Clara Law Review 47 p.413;.
3. Sean R. Fitzgibbons (1999), "Cadaveric Organ Donation and Consent: a Comparative Analysis of the United States, Japan, Singapore, and China" ILSA Journal of International and Comparative Law 6 p.73;.
4. Kelly M. Brown (1996), "Execution for Profit? A Constitutional Analysis of China's Practice of Harvesting Executed Prisoner's Organs" Seton Hall Constitutional Law Journal 6 p.1029;.
5. Allison K. Owen (1995), "Death Row Inmates or Organ Donors: China's Source of Body Organs for Medical Transplantation" Indiana International & Comparative Law Review 5 p.495. All these five articles placed their interest in organ procurement from executed prisoners only.
6. Organ tourism has become a popular phenomenon in China. The majority of foreign organ buyers come from Japan and Korea.
7. Sunny Woan (2007), "Buy Me a Pound of Flesh: China's Sale of Death Row Organs on the Black Market and What Americans Can Learn from It" Santa Clara Law Review 47 p.415;.
8. Joan E. Hemphill (2007), "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" Pacific Rim Law and Policy Journal 16 p.439.
9. Strictly speaking, it is not accurate to regard, as foreign observers normally did, the Chinese government as the general party harvesting profit from procuring organs from executed prisoners and organ trade because in practice, the interested parties may specifically consist of the local court, the local administration of health and local hospitals (See n 24 below).Although the former two are public authorities and the latter are normally owned by the local government, it might blur the conspiracy of these three interested parties if they are simply summarized to "the Chinese government". Moreover, the interest conflicts between the central government and the local government involved in organ procurement from executed prisoners might also be overlooked as a result (See n 29 below).
10. Ding Chunyan (2006), "How Far Do China's New Interim Provisions on Organ transplant Go?" Hong Kong Law Journal Volume 36, Part 3, p.615.
11. In the Chinese legal system, law is made by the National People's Congress, administrative regulations are made by the State Council, departmental rules are made by various departments of the State Council, local regulations are made by various local people's congresses, and local rules are made by local administration. The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Justice, the Ministry of Health legislation is similar to that of departmental rules.
12. These local governments include Shanghai (2000), Ningbo (2002), Shandong Province (2003), Wuhan (2003), Shenzhen (2003), Chongqing (2004) and Fujian Province (2005).
13. See n 6 above.
14. Section 79 and Section 82 of the Legislation Law 2000 (Chinese Source).
15. Section 1 of the 2006 Provisions stipulates three legislative purposes: to regulate the clinical application of organ transplant technology, to ensure health care quality and safety, and to protect health interests of parties.
16. Such as the right of autonomy, the right of integrity, the right of dignity of citizens, no matter they are criminal or not.
17. Other listed human organs include heart, lung, liver and kidney.
18. The successful case of transplantation of pancreas and kidney was firstly report in 2000. See Jiao Huaibiao, Wang Jun and Huang Bin, "The First Transplantation of Pancreas and Kidney in Our Province Gained Success" (Chinese Source), Anhui Workers Daily (Chinese Source), July 19 2000, p2.
19. The fist successful case of transplantation of pancreas and liver in Asia was carried out in Guangzhou in 2003. See Li Yunlin, "The First Case of Transplantation of Liver and Pancreas in Asia Conducted" (Chinese Source), China Population News (Chinese Source), October 31 2003, pD03.
20. The first case of transplantation of liver, pancreas and kidney in Asia was performed in Nanjing in 2004. See Mo Yinglong, "The First Case of Transplantation of Liver, Pancreas and Kidney Was Successfully Carried out in Nanjing" (Chinese Source), Herald of Medicine (Chinese Source), October 8 2004, p8.
21. Under the Chinese civil law, citizens may be categorized into three groups according to the degree of maturity of mind: full capacity for civil conduct, limited capacity for civil conduct and no capacity for civil conduct. See Section 11-13 of the General Principles of Civil Law 1987. In a strict sense, the term "full capacity for civil conduct" differs from the term "competence to consent", because citizen with limited capacity for civil conduct may be regarded in law as having sufficient competence to make decision on a case-by-case basis. Therefore, the scope of citizens with full capacity for civil conduct is smaller than that of citizens competent to consent.
22. In comparison to the term "the next of kin" interpreted by Section 11 of the Opinions of the Supreme People's Court on Several Issues concerning the Implementation of the General Principles of Civil Law (for trail implementation) 1988 as "parents and children, spouse, grandparents and grandchildren, and brothers and sisters", the scope of the next of kin who are entitled to make consent to donate the deceased's organ under the 2007 Regulations is much more limited.
23. Such a fiction of law of kinship also exists in Section 12 and Section 14 of the Law of Succession 1985 («Chinese Source»).
24. See n 5 above, p627.
25. Section 8 of the 2007 Regulations.
26. See "Answers of the Person in Charge from the Office of Legislative Affairs of the State Council and the Ministry of Health to Relevant Questions on the Regulations on Human Organ transplant asked by the Official Website of the Chinese Government" (Chinese Source), available at www.gov.cn/zwhd/2007-04/ 06/content-574082.htm. Although they are not law at all, the opinions of these officials may serve as useful reference for understanding the 2007 Regulations.
27. The 2007 Regulations do not explain what are "the ethical principles and the regulations on administration of human organ transplant technology". It remains unclear whether "the regulations on administration of human organ transplant technology" refer to the 2006 Provisions promulgated by the Ministry of Health.
28. See Liu Li, "The First Case of Transplantation of Organ Donated by a Brain-death Decedent Was Successful" (Chinese Source), Nanfang Daily (Chinese Source), February 17 2006, p.B05;.
29. Zhang Zhongtian, "A Brain-death Decedent Donated His Heart, Physicians from Four Cities Jointly Performed Transplantation" (Chinese Source), Jian Kang Bao (Chinese Source), July 4 2006, p.1.
30. See the discussion about the rules of organ donation above.
31. Regrettably, the charge standards for these fees have not been announced yet.
32. Here, government officials may include judges in court and officials in administration of health. Section 26(2) of the 2007 Regulations also uses the term "government officials" when providing administrative liability against commercial dealings in human organ. Since the majority organs available for transplantation in practice are retrieved from executed prisoners, the local court that executes prisoners, the administration of health that has the power to issue certificate to a hospital to use organs from executed prisoners, as well as local hospitals in need of organs for transplantation are together involved in the organ procurement process. See Section 4(3) of the 1984 Rules. Therefore, they are also together involved as interested parties in the case of sale of organ in practice.
33. Yang Xia and Liu Yizhan, "The Big Gap between the Demand and the Supply of Human Organ Negatively Influences the Development of Human Organ Transplant in China" (Chinese Source), November 14 2006, The Xinhua Net, available at: http://big5.xinhuanet.com/gate/big5/news.xinhuanet.com/society/ 2006-11/14/content-5330262.htm.
34. Ji Minhua, Zhang Yingguang (2005), "Organ transplant: the Area where Regulation Should be Strengthened" (Chinese Source) Cai Jing Magazine, 147, available at http://www.caijing.com.cn/ruleoflaw/other/2005-11-28/7159. shtml.
35. Guo Hengzhong (2005), "Human Organ Transplant in the Context of Ethic and Law" (Chinese Source) China Society Periodical (Chinese Source) 22 p.31.
36. Section 3 of the 1984 Rules.
37. The relationship between the central government and local government remains a major problem in the Chinese political context. In the practice of organ transplant, it was the local government that was fully in charge of organ procurement, organ allocation, and organ transplantation before the 2006 Provisions. Local protectionism thus becomes a serious problem in practice. The birth of the 2006 Provisions and the 2007 Regulations, to some extent, is supposed to break local protectionism and to achieve effective regulation of the organ transplant practice.
38. Local hospitals often have close relationship with local administration of health. The latter owns the power to issue certificate to use organ from executed prisoners. See n 24 above.
39. The parties to the agreement of sale of organ normally tell a lie that they are relatives in order to cover up the story of organ trade.
40. According to Section 4 of the Notice, the hospital that performs organ transplant operation for the permanent residents of Hong Kong, Macau and Taiwan still has a duty to report the case to the provincial administration of health, which is supposed to further report it to the Ministry of Health in time.
41. See n 26 above.