The Interrelatedness of Execution and Organ Procurement in China

For four decades, China’s transplant medicine program has relied on organ procurement from executed prisoners. Before 2010, there was no organ donation program at all. According to Chinese sources, there were as few as 130 voluntary postmortem organ donations in all of China from 1977 to 2009.^{Footnote 9} In a publication in 2008, it was disclosed that more than 90 percent of the transplanted organs in China were obtained from executed prisoners.^{Footnote 10}

In 2007, the Chinese Medical Association committed to ending organ sourcing from prisoners in a letter to the World Medical Association.^{Footnote 11} However, harvesting of prisoner organs did not stop. Even though in 2013, 38 hospitals stated in an agreement (the so-called “Hangzhou Resolution”) to immediately stop using executed prisoners’ organs, the ethically unacceptable practice continued, even in these hospitals.^{Footnote 12}

Finally, in December 2014, China announced that the country would completely stop the use of organs from executed prisoners for transplantation after January 2015. This announcement was welcomed and celebrated internationally as the end-point of a formerly inhumane process of organ harvesting. This public announcement, however, is neither a law nor a regulation, nor has it so far been followed by any changes to China’s organ donation laws or regulations. The use of prisoner organs remains legal, if “consent” is obtained from the prisoners.^{Footnote 13} Therefore, the implementation of the announcement is at least questionable.^{Footnote 14,Footnote 15,Footnote 16,Footnote 17,Footnote 18,Footnote 19}

Since March 2014, China has openly announced a plan to integrate prisoner organs donated with “consent” into the citizen-based national organ donation system^{Footnote 20} in order to count these prisoner organs as “voluntary donations from citizens.”^{Footnote 21} In 2015, Chinese transplant officials have repeatedly insisted that death-row prisoners have “the right” to donate organs and “if death-row prisoners are willing to atone for their crime by donating organs, they should be encouraged.”^{Footnote 22,Footnote 23,Footnote 24,Footnote 25}

In the question and answer section of the Chinese Organ Transplantation Development Foundation published on May 5, 2016, there was an explicit question (question No. 491) about organ donation by prisoners. The answer to this question was: “Provided that the basic conditions for organ donation are met, the organs are normal and the donation voluntary and unpaid, prisoners also can donate organs.”^{Footnote 26} After this misleading and ethically disturbing statement had been reported by the New York Times on August 18, 2016,^{Footnote 27} the Foundation replaced the question with another unrelated question without any comment,^{Footnote 28} instead of changing the answer to the question. All in all, it has to be said that there is no evidence that the use of organs from prisoners has yet been prohibited by law in China.

Execution by Lethal Injection in China

The first execution by lethal injection in China was carried out in Kunming City on March 28, 1997.^{Footnote 29} Since then, the practice has been gradually expanded. Liaoning was reported to be the first province that switched completely to lethal injection in December 2009.^{Footnote 30}

It has been reported that the Supreme People’s Court has developed the drug regimen for lethal injection, and these drugs are used throughout the whole country. The identities and dosages of the drugs are kept secret.^{Footnote 31} What is known, however, is that there was a debate about the principle to be applied: either to induce death pharmacologically by using anesthetics and lethal drugs, or to simply poison the prisoners by using toxic substances. The authority finally did choose the first option.^{Footnote 32} This means that the drugs used for lethal injection in China are mechanistically not different from those used in the United States and/or other states in which lethal injection is part of the penal system. It is therefore plausible that three drugs (sodium thiopental, pancuronium bromide, and potassium chloride) are used,^{Footnote 33} especially if a meeting abstract of the 2009 conference of the Chinese Pharmaceutical Association is taken into consideration. This abstract indeed states that the drugs used for lethal injections in China are sodium thiopental, pancuronium bromide, and potassium chloride.^{Footnote 34} This is furthermore consistent with the reported fact that the lethal injection used in China consists of four injection solutions.^{Footnote 35} The fourth solution is very likely saline, used intermittently between the injection components to flush the infusion tube, thus avoiding drug precipitation.^{Footnote 36}

In the Provision on Issues in Execution by Injection issued by the Supreme People’s Court in 2001, death was defined as fulfillment of all of the following three criteria: (1) cessation of heartbeat, (2) cessation of respiration, and (3) dilated and fixed pupils (diameter > 0.5 cm).^{Footnote 37}

In September 2001, a “working meeting on execution by lethal injection” was held in Kunming City. The attendees were invited to watch an execution at the site. In this demonstration case, the time from starting the injection pump to the pronouncement of death was less than 2 minutes.^{Footnote 38} In a case in Wuhan on June 8, 2002, journalists were allowed to be present and the family was allowed to follow the execution procedure via closed-circuit television. In this special demonstration case, death was declared within 3 minutes after the injection pump was started.^{Footnote 39} In routine practice, however, the time is even shorter. In an analysis article from the Intermediate People’s Court of Lu’an City, it was stated that death is pronounced “within tens of seconds” after starting the injection.^{Footnote 40} By July 18, 2017, this article had been viewed 9,167 times since its publication on November 28, 2010, and the herein described practice of declaring death within tens of seconds has not ever been questioned.

The Concept of Death

Most legal determinations of death in the developed world are made by medical professionals who pronounce death when specific criteria are met. In general, two categories of legal death are internationally established. Death as determined either by irreversible cessation of heartbeat and breathing (cardiopulmonary death), or by irreversible cessation of the functions of the brain (brain death). In the United States, for example, each state has laws for determining these two categories of death, laws that are modeled on the Uniform Determination of Death Act.^{Footnote 41}

Lethal injection-induced death differs significantly in its mechanisms from natural death or death caused by disease or organ failures. Lethal injection usually consists of sequential administration of sodium thiopental for anesthesia, pancuronium bromide to induce muscle paralysis and respiratory arrest, and finally, potassium chloride to cause cardiac arrest.^{Footnote 42} However, these drugs do not immediately induce death. At the onset time point of cardiac arrest and respiration arrest, the cessation of heartbeat and breathing is still reversible and the brain is still functioning, although under deep sedation. Although the exact mechanisms of death in lethal injection are unclear, it is conceivable that death only occurs as a consequence of brain damage caused by the lack of cerebral perfusion following cardiac arrest, which is a process that requires several minutes. For this reason, the North Carolina warden, for example, declares death only after a flat line is displayed on the electrocardiogram (ECG) monitor for 5 minutes. Death is pronounced in the time range of 14 to 18 minutes after starting the lethal injection.^{Footnote 43}

By comparison, the Chinese practice of declaring death by lethal injection within “tens of seconds” after starting the lethal injection does not conform to any international standard and is not supported by any medical knowledge. First of all, it lacks standardized procedures of objective measurement for proving the cessation of heartbeat and respiration, as well as clear-cut regulations. ECG, for example, is not required for the confirmation of heart arrest in lethal injection in China.^{Footnote 44} According to the 2001 rule, death is determined by the forensic physician by examining heartbeat, respiration, and pupils. Without objective measurements, however, these determinations can be, at least partially, rather subjective.^{Footnote 45} Therefore, it is not clear whether cessation of heartbeat, cessation of respiration, and dilated and fixed pupils really happen within a time range of tens of seconds. Moreover, even if actually occurring within this short time range, they are still reversible at this stage and more likely result from the pharmacological effects of the injections rather than from the cessation of brain activity. Collectively, prisoners are declared to be dead in China from the procedure of lethal injection at the stage of cardiac arrest, respiration arrest, and anesthesia. Under these conditions, a human being is not yet dead according the internationally accepted definition of death. To declare the death of a still-living human being is not compliant with the most fundamental ethical value, human dignity. The breach of ethical principles is greater if lethal injections become the sole precursor of the harvesting of prisoner organs, which will be discussed subsequently.

Flaws in Execution by Lethal Injection

It has been reliably demonstrated that thiopental and potassium do not consistently result in death.^{Footnote 46} Analysis of postmortem blood thiopental level data from the United States indicates that thiopental, as used, may not provide sufficient anesthesia—for example, compared with surgical anesthesia—for the duration of the execution.^{Footnote 47} Further, available evidence indicates that a significant number of prisoners actually suffer extreme pain during lethal injection,^{Footnote 48,Footnote 49,Footnote 50} a clearly unethical and inhumane situation. The flaws in the United States cases include reported failures in intravenous access by untrained staff, drug precipitation leading to blockage of intravenous tubes, and inappropriate drug doses.^{Footnote 51}

In a Chinese article published in 2010, the question was posed whether comparable flaws in the practice of execution by injection would also occur in China, and the judicial authorities were strongly encouraged to evaluate the efficacy of lethal injection in collaboration with medical institutions.^{Footnote 52} Lethal injections in China are in part performed by judicial police officers, and in other cases by forensic physicians or by invited medical doctors.^{Footnote 53} Although scientific articles on lethal injection in China are rare, drug precipitation and infusion tube blockage have been reported.^{Footnote 54} It has also been reported that the lethal injection in an execution case at the Intermediate People’s Court of Hangzhou failed because the executioner was too nervous.^{Footnote 55} Possible reasons for failure in execution by lethal injection in China have been supposed to include low or incorrect drug dosage and insufficiently trained personnel.^{Footnote 56} Furthermore, it may be difficult for nonmedical staff (e.g., a judicial police officer) to perform intravenous injection correctly, particularly if prisoners are obese, diabetic, muscular, or cachectic.^{Footnote 57}

Therefore, it cannot be excluded that some of the executions by lethal injection were performed in China under insufficient anesthesia. The clinical picture of a seemingly peaceful process of dying does not necessarily indicate a painless death, but may be caused by pancuronium-induced paralysis. The inmate may potentially experience asphyxiation (pancuronium-induced muscle paralysis and respiratory arrest) and pain (potassium-induced burning) for quite a long time in cases in which the anesthetic effect of thiopental is insufficient.^{Footnote 58,Footnote 59}

Organ Procurement from Prisoners Executed by Lethal Injection

In the Chinese literature, scholars discuss three major factors in the comparison of lethal injection with execution by shooting. Lethal injection is considered to be more humane, more expensive, and, to provide organs of better quality.^{Footnote 60,Footnote 61,Footnote 62,Footnote 63} The high quality of the organs hereby obtained for transplantation is generally perceived in China as a great advantage, as shown in published sources: “In cases of organs procured from execution by shooting, transplantation success rate is hampered by severe blood loss, too long a warm ischemia time, and tissue/cell degeneration of the organs, if organ procurement is performed after reaching clinical death. In execution by injection, the problems of blood loss and long warm ischemia time do not exist. Therefore, under the same condition [of the prisoner], execution by injection provides donor organs of superior quality.”^{Footnote 64,Footnote 65}

The use of prisoners as a source for transplant organs is against ethical standards deeply rooted in concepts of human dignity and autonomy. Harvesting organs from prisoners violates fundamental human rights that are interculturally and internationally accepted. If organ harvesting is performed in the context of execution by lethal injection, the ethical impact is even further aggravated. In cases in which thiopental’s effect is insufficient and organ explantation begins immediately after cardiac arrest, the inmates may suffer from excruciating pain induced by organ explantation surgery, the surgical opening of the abdomen and/or chest. Yet this can be easily overlooked by the medical professionals performing the explantation surgery, because pancuronium prevents muscle responses to the sensations of pain.

From an ethical perspective, the use of death-row prisoners as an organ source has no justification whatsoever, even through pragmatic or utilitarian arguments (see aforementioned WMA and TTS policies). From a medical perspective, the hasty declaration of death in execution by lethal injection in China favors a quick yet inhumane shortcut to organ explantation, which violates professional standards.

Suggestions

The death determination criteria currently being used in the process of execution by lethal injection in China conform neither to current medical science nor to any standard of medical ethics. Moreover, no objective measurements are required in confirmation of death. The organ explantation practice according to the death determination criteria currently being used is not compatible with any known medical and ethical standards. Only an irreversible loss of brain function can safeguard the inmate from inhumane practices and further offenses against human rights and dignity. Even though cardiac death is the legal standard in China,^{Footnote 66} injection-induced death differs significantly in its pharmacological context and physiological mechanisms. The current practice of certifying death immediately after cardiac and respiratory arrest is ethically not acceptable. Death must be ensured by clear-cut protocols such as those in the practice of death determination in the United States penal system: 5 minutes of cardiac inactivity shown on an ECG combined with a thorough clinical examination performed and documented by medically trained personnel and in the best case, augmented by further diagnostic tools such as electroencephalography. However, this suggestion should not be misunderstood as a contribution for improvement in the context of unethical and inhumane practices of organ harvesting in particular, nor as being supportive of death penalty in any sense. Hopes are, however, that if this inhumane practice cannot be brought to an end by the international community, we could at least contribute to the amelioration of suffering caused by inhuman practices of lethal injection.