Canadian Remedies for Organ Transplant Abuse in China
International Coalition to End Organ Pillaging in China
By David Matas, Esquire, November 19, 2014
Presented to a forum at The National Archives, Ottawa
I want to express my appreciation for the remarks of Ethan Gutmann and Damon Noto. I have been on this file for over eight years now and it is a relief to have colleagues as informed and articulate as Ethan and Damon joining me and David Kilgour in our efforts.
Today I am not going to talk about the evidence. I start with an assumption that you are either convinced by my colleague or at least troubled enough by what they said to want to do something about it. The question I want to address is what that something in Canada might be.
Parliament
A. Petitions
Parliament has a range of options some of which it has already exercised. There have been a myriad of petitions by a wide variety of Parliamentarians already on forced organ harvesting of Falun Gong in China.
I have identified twenty five different petitions from nineteen different Parliamentarians on the issue of the killing of Falun Gong for their organs. The first was presented in May 2006 by Paul Szabo even before David Kilgour and I began our investigation. The most recent was presented this month by Joy Smith.
The petitions call on the Canadian government to help stop the atrocities by condemning the Communist regime for committing these crimes against humanity. They ask the government to urge the Chinese regime to end the persecution of Falun Gong practitioners and release all Falun Gong practitioners. They further ask the government to take active measures to help stop the mass killing and organ harvesting of Falun Gong participants. They urge the government to discourage Canadians from travelling to China for organ transplants.
B. Statements
There are three different statements made in the House of Commons about organ transplant abuse in China which victimizes Falun Gong. The statements have been made by Wayne Marston in June 2007, Brent Rathgeber in May 2012 and Judy Sgro in November 2012 with content similar to that of the petitions.
C. Resolutions
There is though no Parliamentary resolution on the issue, not even a proposed resolution. A number of other jurisdictions have passed or proposed resolutions. The Canadian Parliament should do so.
The United States Congress is actively considering a resolution proposed in June 2013, which has gone through a sequence of steps. There has been a resolution passed by the European Parliament in December 2013 and the Italian Senate in March 2014.
The resolutions call upon the Government of China to increase transparency and accountability for the organ transplant system. They ask the Government of China to punish those responsible for abuse. They urge a full and transparent investigation by their own governments into organ transplant practices in China. They call on their own governments to deny entry to the territory to doctors involved in organ transplant abuse. They ask the medical community to help raise awareness of the abuse.
D. Legislation
i) Canadian
There have been three private members bills introduced into Parliament in recent years addressing organ transplant abuse. One was proposed by Borys Wrzesnewskyj, Bill C-500 proposed in February 2008. A second was proposed by Borys Wrzesnewskyj, Bill C-381, in May 2009. A third was proposed by Irwin Cotler, Bill C-561, in December 2013.
These private members bills propose the creation of a number of distinct offences. All the offences have extraterritorial effect. They are punishable whether the acts are committed inside or outside Canada. They are limited though to Canadian citizens and permanent residents. Visitors can not be prosecuted for what they have done abroad.
One set of offences deals with absence of consent. Every one commits an offence who receives the transplant of an organ removed without the donor’s consent and knew or ought to have known, at the time of the transplant or earlier, that the organ was removed without the donor’s consent. A person commits an offence if the person participates in the removal of an organ or other body part without the donor’s consent. A person offends if the person knowingly acts on behalf of a person who removes an organ or other body part without the donor’s consent or of a person who purchases the organ.
A second set of offences deals with the sale of organs. An offence is committed by a person who obtains an organ with the intention of having that organ transplanted and knew or ought to have known, at the time of the acquisition or earlier, that the organ part was acquired as a consequence of a financial transaction. There is an offence committed when a person participates in the acquisition of an organ, and knew or ought to have known, at the time of acquisition or earlier, that the organ was acquired as a consequence of a financial transaction.
Anyone who has a transplant must within 30 days after the transplant obtain a certificate establishing that the organ was donated and that no money was paid for it and provide that certificate to a designated Canadian authority. A Canadian citizen or a permanent resident who has a transplant outside Canada must provide the certificate to the designated Canadian authority at the latest upon return to Canada.
The proposed laws set up professional reporting requirements. Doctors and nurses must report to the designated Canadian authority the identity of any person examined who has had an organ transplant.
The proposed laws also impact on immigration law. The proposal is to render inadmissible to Canada anyone whom the Minister of Public Safety has reasonable grounds to believe has committed one of the organ transplant offences set out in the proposed legislation.
ii) Foreign
a) Australia
Member of the New South Wales Parliament David Shoebridge is proposing to introduce into that Parliament legislation to prohibit any person from
a) entering into a commercial transplant arrangement,
b) removing tissue from the body of another person, whether living or deceased, without consent,
c) consenting to the use of tissue removed from the body of another person, whether living or deceased, for the purpose of its transplantation to the patient if the tissue was removed without consent, and the patient knows or is reckless as to that lack of consent.
The proposed legislation requires medical practitioners and nurses who provide services to a patient and have reasonable grounds to suspect that tissue has been transplanted to the patient to report to the appropriate authority
(a) the name of the patient,
(b) when and where the medical practitioner or nurse provided services to the patient, and
(c) the grounds for suspecting that tissue has been transplanted
into the patient.
Any patient who consents to the transplantation to the patient of any tissue must report to the appropriate authority the date, location and nature of the treatment in connection with which the tissue was transplanted to the patient.
The proposed legislation has extraterritorial effect. The law applies where either the person committing the prohibited act or the person from whom the tissue is removed is ordinarily resident in New South Wales, even where the act itself occurs outside New South Wales.
b) Belgium
Two Belgian senators Patrik Vankrunkelsven and Jeannine Leduc introduced into the Belgian Parliament on November 30, 2006 a law which addresses organ transplant tourism. The law inserts a provision into an existing law on organ transplants.
The insertion prohibits the undergoing of transplants outside the European Union in three circumstances. The first is that there is evidence indicating that the source of the organ is a living person who has not consented. The second is that there is evidence indicating that the source of the organ is a prisoner sentenced to death. The third is that the amount paid for the transplant is so large that it creates a presumption that the organ was sold for profit.
A person who undergoes a transplant in violation of this prohibition is subject to a fine of between 500 and 5,000 Euros. The penalty can be avoided if the person who underwent the transplant can prove that the organ was not harvested from a living person who has not consented or a prisoner sentenced to death and that the organ was not sold for profit. The law gives the government the authority to establish a list of medical institutions outside the European Union to which a person can go for a transplant without the necessity of proving these matters.
The authors of proposed legislation appended a commentary which explains that the law provides that whoever undergoes an organ transplant outside of the European Union must personally assure him or herself that the organ was donated willingly and did not come from a prisoner sentenced to death, who is presumed not to be able to decide without constraint. Also, anyone who pays a large sum must assume that this payment is not a simple reimbursement for costs incurred. If the organ recipient can not prove the opposite, the recipient subject is subject to punishment.
The government can establish a list of medical institutions for which these negative presumptions do not apply. If the patient receives a transplant in one of the listed institutions, he or she does not have to discharge a burden of proof and is therefore not liable to punishment.
It follows that, if the patient must undergo an organ transplant outside of the European Union, it would be preferable that the patient goes to a medical institution on the list. Otherwise, the patient must be especially vigilant and verify the source of the organ received.
The background note stated that the proposed law was aimed at preventing Belgians from being tempted by the sale of organs in violation of ethical standards. The authors of the proposed legislation wrote that if the countries from which patients now go systematically to China instituted a ban, the encouragement for the sale of organs would end.
c) France
French Parliamentarian Valérie Boyer on 19 October 2010 along with several other members of the National Assembly proposed a law which sets out certificate and reporting requirements similar to the Canadian proposed law. The proposed law requires every French citizen and habitual resident who undergoes an organ transplant abroad to acquire at the latest 30 days after the transplant a certificate stating that organ was donated without payment. The organ recipient must provide the certificate to the French Biomedical Agency before returning to France.
The proposed legislation requires every doctor to report to the Biomedical Agency the identity of every person the doctor examined who underwent a transplant. The proposed law in turn requires the Biomedical Agency to report to the Public Department any person who there are reasonable grounds to believe was involved in a financial transaction to obtain an organ.
d) Israel
Israel passed a law in 2008 banning the sale, purchase and brokerage of organs both in Israel and abroad. The prohibition against sale forbids receipt of a reward for an organ removed from the body of any person including one’s own. The prohibition against purchase forbids giving a reward for an organ transplanted into the body of any person including one’s own.
The prohibition against brokerage forbids being a broker either directly or indirectly where a prohibited reward has been promised. The penalties for violating these prohibitions apply whether the organ removal or transplant is intended to take place inside or outside Israel.
The law prohibits reimbursement of transplantation abroad conducted in violation of the standards of the legislation. This provision ended funding through the health insurance system of transplants in China for Israeli nationals. Jay Lavee in his contribution to the book State Organs explains the enactment of this law as a reaction to transplant abuse in China.
e) Malaysia
The Malaysian AntiTrafficking in Persons Act 2007 defines exploitation to include the removal of human organs. The law prohibits the trafficking of any person for the purpose of exploitation. The law also imposes a penalty on any person who profits from the exploitation of a trafficked person.
The prohibitions in the Act apply whether the conduct constituting the offence took place inside or outside if the trafficking starts in Malaysia or Malaysia is the receiving country. As well, any offence committed by a citizen or permanent resident of Malaysia outside of Malaysia may be dealt with as if it had been committed within Malaysia.
Datuk Seri Liow Tiong Lai, the Health Minister of the Government of Malaysia, announced on October 16, 2011 that, as of January 1, 2012, any Malaysian who travels abroad for an organ transplant provided on a commercial basis would not get a free supply of immunosuppressant drugs from government hospitals. The Minister said that the new ruling would apply only to new cases. Old cases would continue getting their supply of immunosuppressant drugs from government hospitals. He added that those who need surgery overseas must consult the Health Ministry to get government approval.
f) Spain
In November 2009, the Spanish Council of Ministers agreed to submit to the Congress of Deputies amendments to the Criminal Code to combat transplant tourism. The then Criminal Code already criminalised organ harvesting in exchange for a payment or reward to the donor. The Council of Minister considered it necessary to be more specific in criminalising human organs trafficking, its promotion through advertising and transplant tourism.
Changes to the Criminal Code provided that:
1. Those who promoted, encouraged, facilitated or advertised the procuring or illegal trafficking of human organs or their transplantation would be punished with a sentence of six to twelve years in the case of a major organ, and a sentence of three to six years in the case of a non-major organ.
2. An organ recipient who consented to the transplant, being aware of its illicit origin, would be punished with the same penalties, which might be lowered, taking into consideration the circumstances of the crime and the offender.
3. When the criminally liable is a legal person, a temporary penalty of the closure of its properties and facilities for two to five years would be imposed, as well as the confiscation of the goods, products and profits obtained from the crime.
The first change sought to punish organ trafficking and its advertising, be it requesting or offering organs obtained for a fee. With this new crime, the whole chain of criminal activities aimed at obtaining an organ, offering it for transplant, identifying the organ recipient, and facilitating the execution of the transplant through transplant tourism was penalized.
The second change incriminated the person receiving the transplanted organ who, knowing the illegality of the transplant, consented. The Government view was that, if the person who requested these services, whose money was funding and profiteering the criminal organisation, was not punished, then policies aimed only at punishing traffic promoters and executors would be insufficient.
The third change aimed at combating criminal organisations. The Government concluded that offences related to human organs trafficking and transplant tourism were usually committed by organisations with the means and resources to engage in the business of trafficking. It was therefore, to the Government, appropriate to foresee the direct imposition of sanctions on the legal persons involved in these offences, closing their establishments or properties and seizing the profits obtained.
Similarly, and in line with the new crime of illegal human organ trafficking, the Criminal Code reform extended the crime of human trafficking. A new provision penalized the arbitrary detention of people to harvest their organs. This reform reinforced the need to protect the victims of these attacks, as they were also through this reform covered if the trafficking was intended to exploit them for sex or labour.
g) Taiwan
The Health Department of the Government of Taiwan on August 4, 2006 promulgated an administrative order which provides that a physician would be in violation of medical ethics and subject to disciplinary action if the physician
1. introduces or refers patients to a broker,
2. introduces or refers patients to a country where laws or regulations do not prohibit organ trade or organ brokerage or the information on the source of organs is not transparent,
3. contacts organ transplant agencies abroad and brokers patients,
4. takes patients abroad for organ transplants and receives remuneration.
The Taiwan Legislature on November 22, 2012 resolved that the Department of Health must require major medical institutions and physicians to record the country of transplant and hospital information (including surgeons) of any patient who received an organ transplant in a foreign country. The recording must be done when the patients apply for postoperative health insurance payment after returning home.
h) United States
US visa application forms from 2012 ask visa applicants this question: “Have you ever been directly involved in the coercive transplantation of human organs or bodily tissue?” The likelihood of a person answering yes to such a question is small. The question all the same has a significant value, practical as well as symbolic. Those directly involved in the coercive transplantation of human organs or bodily tissue may well, in the face of such a question, be discouraged from applying for a visa.
Moreover, if the question is asked and a person directly involved in the coercive transplantation of human organs or bodily tissue lies on application, that lie can have legal consequences. An applicant for a visa can barred from entry on the basis that the applicant has foreclosed relevant inquiries. It is not necessary to establish that the inquiries, if made, would have led to a finding of inadmissibility on a ground other than the misrepresentation.
Moreover, a misrepresentation once made can have consequences for the rest of the life of that person. Once the lie is uttered, then any status acquired on the basis of that lie, even citizenship, can be later unravelled because of that lie. For revocation of citizenship or permanent residence as well as for entry, authorities need not prove that the person was directly involved in the coercive transplantation of human organs or bodily tissue. It is sufficient for the authorities to establish that the lie foreclosed enquiries whether the person was directly involved in the coercive transplantation of human organs or bodily tissue.
International Standards
There is a United Nations Convention on Transnational Organized Crime with a Protocol on Trafficking in Persons. China is a state party to both the Convention and the Protocol. The United Nations Office of Drugs and Crime, which provides the staffing for the Convention and Protocol, states on its website that the Protocol includes trafficking in persons for the purpose of organ removal. Does that mean that the Protocol encompasses organ trafficking, including transplant tourism? That is not so clear.
The Council of Europe has had a Convention on Action against Trafficking in Human Beings dating from 2005 which applies to trafficking in organs. The Council of Europe, despite that Convention, saw fit to approve yet another Convention titled the Convention against Trafficking in Human Organs, opened for signature in July of this year, 2014. That Convention can be signed by the member States of the Council of Europe, the European Union and the nonmember States which enjoy observer status with the Council of Europe. It is also can be signed by any other nonmember State of the Council of Europe upon invitation by the Committee of Ministers.
The purpose of the second Council of Europe Convention, as set out in its preamble, is to introduce “new offences supplementing the existing international legal instruments in the field of trafficking in human beings for the purpose of the removal of organs”.
These international standards suggest several courses of action. Both the Government of Canada and NGOs should
a) request that the United Nations Office of Drugs and Crime include organ transplant tourism within its work on organ trafficking;
b) propose to state parties to the UN Protocol that at the next conference of state parties they endorse a resolution that the Protocol encompasses organ transplant tourism;
c) urge all states to adhere to the second Council of Europe Convention; and
d) advocate the drafting of a UN Convention along the lines of the second Council of Europe Convention.
Conclusion
One of the reasons that David Kilgour and I came to the conclusion we did, that Falun Gong are being killed for their organs, is that not all the precautions which should be there to prevent that abuse are there. We can not on our own end transplant abuse in China. However, we should make every effort not to be complicit in that abuse. We need made to make substantial changes in our laws and policies to avoid that complicity and do what we can to prevent that abuse.