Written: November 2020 by Marianne Kastrup

Background and history

Capital punishment has been part of Chinese history and was one of the classical five punishments in the dynastic periods. Confucius did not oppose capital punishment absolutely, but he took the view that in a well-ordered society capital punishment would become unnecessary, but capital punishment and corporal punishment remained however what offences would lead to death penalty varied greatly. Historically, poorer, and lower-status Chinese were most often subject to capital punishment. But in times of war or strife officials or persons of high-rank were executed as a means of social control.

In modern times according to Amnesty International estimates, more than 1770 people were executed and 3900 sentenced to death in 2005. The true figures are believed to be much higher. In March 2004, a senior member of the National People’s Congress announced that China executes around 10,000 persons annually.  

Chinese legal academics who are opposed to the death penalty have recommended that the number of persons executed could be reduced by eliminating capital punishment for economic offences but so far this has not taken place.

Present situation

According to Amnesty Internationals Global Report on Death Sentences and Executions from 2018 China continues to execute and sentence to death thousands of people, thus remaining the world’s lead executioner. Human rights groups suggest the true number runs into several thousands, although officials say their “kill fewer, kill carefully” campaign has cut the numbers and have pledged to further reduce use of the death penalty.

It is however impossible to assess the trends and claims from Chinese officials about a reduction in executions as the figures on how frequently capital punishment is used is still a state secret. Chinese legislation may apply death penalty for 46 offences. The majority of cases involve murder and drug-related offences. But among the offences that may lead to death penalty are some non-violent offences such as tax fraud that do not meet the threshold of the “most serious crimes” to which the use of the death penalty must be restricted under international law and standards.

Amnesty International has called on Chinese authorities to be transparent in the implementation of death penalty and the organization has expressed concern about how secretive death penalty is used in some regions and how “strike hard” campaigns towards Muslim-ethnic minorities may be linked to the use of death penalty.

Specific problem areas: Organ transplant

In China, as in most countries, the number of patients needing a transplant far exceeds the number of organs available. Chinese citizens are reluctant to donate their organs after death.

But China is unique as the country for years has attempted to change this imbalance by harvesting organs from the prisoners that the country executes. This practice has received heavy international criticism by e.g. foreign transplant specialists and human-rights advocates stating that there is no excuse to remove organs fromprisoners in a system in which the quality of the legal process is questionable. It is difficult to provide reliable statistics about the extent of the practice, but state media estimate that two-thirds of organ donors in China are executed prisoners. The authorities have previously acknowledged that corneas, kidneys, and other body parts from criminals have been transplanted. But despite efforts to reduce the use of the organs of prisoners, the country’s reliance on death-row inmates has been extensive.

In recent years, Chinese officials have acknowledged that using organs from executed prisoners is not an acceptable source. They have launched a national donation system, but the scarcity of organs has created a black market and transplantation is big business. And in Human Rights Watch a concern is raised about the total lack of transparency and disposal of organs of death row prisoners.

Recently, China ruled that organs from executed prisoners would be given only to family members, and that living donors could give body parts only to relatives or those with an “emotional connection”.

Role of doctors

Doctors play a crucial role in carrying out organ transplant. As a consequence the World Medical Association (WMA) has had a keen interest in convincing its member associations to take a clear stand on this and refrain from participating in the use of organs from prisoners on death-row due to a concern whether these prisoners indeed have truly given informed consent.

At the World Medical Association General Assembly in 2007 the Chinese Medical Association agreed that organs of prisoners and other individuals in custody must not be used for transplantation, except for members of their immediate family.

In a letter to the WMA, the Vice President and Secretary General of the Chinese Medical Association, Dr Wu Mingjiang informed that a consensus has been reached, and that the Chinese Medical Association agreed to the WMA Statement on Human Organ Donation and Transplantation. According to this statement organs of prisoners and other individuals in custody must not be used for transplantation, except for members of their immediate family.

Further he informed that the Chinese Medical Association hopes for a closer collaboration with the WMA and that it will promote the strengthening of how human organ transplantation is managed and prevent possible violations of the regulations made by the Chinese Government.

This announcement by the Chinese Medical Association followed years of negotiations between the Chinese Medical Association and the WMA due to reports on the organ transplant of executed prisoners. The WMA had on earlier occasion emphasized that prisoners and other individuals in custody were not in a position to give consent freely, and urged the Chinese Medical Association to take a stand against that Chinese doctors were involved in the removal or transplantation of organs from executed prisoners and that such practice should cease immediately.

Furthermore, a WMA delegation had met with representatives from the Chinese Medical Association and members of the Chinese Government and following that, WMA announced that although differences between the two sides remained, China was moving in the right direction.

So with the 2007 announcement by the Chinese Medical Association a very positive step was taken with a wish to continue the dialogue with the Chinese Medical Association and include other national medical associations in a project to find best practice models for ethically acceptable organ procurement programs.

In the Chinese Medical Journal (2020 Apr 5; 133(7): 760–765) an overview is given on how organ donation and transplantation in China has shown remarkable improvement since then and that this has been appreciated and recognized by the international community.

Since 2015, the Chinese government has invited international experts to China to personally witness the entire organ donation process to confirm the facts. Now organ donation is transparent and open in China. According to the article it has also prompted experts who were skeptical of the organ transplantation process to acknowledge the construction and reform of the Chinese organ transplantation system. And at a conference in 2018 on “Ethics in Action” the United Nations and the Vatican Pontifical Academy of Sciences the reform of organ transplantation and its practice in China to the world was introduced, and well received by the participating experts.