中国死刑囚移植についてのアメリカ連邦議会証言旺
岡粟屋

私はここ数年，中国における死刑囚からの臓器移植について，実態調査や法整備の状況等についての調査を行ってきた。その結果はすでに法律時報（第68巻第9号（1996年）28頁以下「中国における死刑囚からの臓器移植」）や，いのちジャーナル（1998年2月号6頁以下「中国・死刑囚からの臓器移植」）などに報告している。この中国死刑囚移植について，1998年5月，アメリカ連邦議会（下院）国際関係委員会と政府改革監視委員会の合同委員会が証言および意見陳述を求あてきた。私はそれに応じて，同年6月4日，合同委員会公聴会において証言および意見陳述を行った。その際，合同委員会は事前に質問事項を示し（末尾添付文書参照），答弁の内容について，公聴会開催中の質疑応答とは別に，文書で提出するよう要求してきた。それが以下の文書である。私がこの文書で述べている事実や意見のほとんどはこれまで活字にしていないものである。それゆえ，資料として本論叢に掲載していただくことにした。

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第50号徳山大学論叢
STATEMENT OFTSUYOSHI AWAYA， PROFESSOR OF LAW AND SOCIOLOGYTOKUYAMA UNIVERSITY
before the

INTERNATIONAL RELATIONS COMMITTEE AND
GOVERNMENT REFORM ＆ OVERSIGHT COMMITTEEof the

UNITED STATES HOUSE OF REPRESENTATIVES
June 4， 1998

1． Japanese patients going to foreign countries for organ transplants．
There are two ways that Japanese patients take to go overseas
for organ transplants． The first is to go to a developed country
recommended by one's attending physician． The second is to go to a 'developing country through a broker or by oneself． The developing
countries where Japanese patients have been going for organs include
the Philippines， Chiha， Korea， lndia， Bangladesh， Thailand， andTaiwan．
All of the latter type case occurred before the enforcement of

the new Japanese organ transplant law，Organ Transplants 1997．

the Law concerning Human

Since the law took effect， no such cases

have been reported．
There are only a few brokers for the Chinese market． Some
brokers stopped their business due to the law． Some are still
continuing their business， but no patients come to the brokers' offices，

because patients are afraid of punishment by the law． lncidentally， thePhilippines market has been stopped completely due to the law．
2． The legal distinction in Japan between

an organ saleand apackage of hospital services that include a transplant operation．

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1998年12月 粟屋 剛：中国死刑囚移植についてのアメリカ連邦議会証言

The Law concerning Human Organ Transplants 1997 in Japanprohibits sale of an organ in same way as the AmericanNational

Organ Transplant Act 1984．
If a patient pays money as

valuable consideration

for anorgan， this is counted as an organ sale， and so is illegal． But， if apatient pays money for operation fees， drugs， and various 一〇therexpenses， it is not seen as an organ sale， so it is not illegal． （The'samelegislation is observed all over the world． ） Therefore， even if apatient receives a package of hospital services that include a transplant
operation， it is not illegal， unleSs the patient'asvaluable consideration．

垂≠凾?money for the organ

But even in this case， brokers' business fora package of hospital services is illegal for other reasons． Why？ The

mediationof organ transplants without the permission of theJapanese government is prohibited by the above mentioned law．
Incidentally， lf someone provides only information services
about the procedure of getting organ transplants in China， as it is not
actual mediation of organ transplants， it is not illegal． One Japanese

broker has started such an information business recently．

3．Proef that organs transplanted in China come from executedpnsoners・．

In 1993， the Chinese government admitted that organs used intransplants in China come from executed prisoners （in a statement byChinese United Nations delegate， Jin Yongiian （United Nations，Report of the Committee against Torture， Forty‑eighth Session of theGeneral Assembly， Supplement No．44 ［A／48／44］， 1993））． 1 have
tried to observe an execution and removal of organs myself， but as yet

I have not been able to． But one Hong Kong Chinese doctor， who isreferring patients to China， told me that this is true． And one Chinese

doctor and one nurse who are working for Japanese transplant patients
also confirmed this． lncidentally， many articles also make reference tothis fact．

4． The time when Japanese patients started to go to China for organtransplants．

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第50号徳山大学論．叢Japanese patients started to go to China for kidney ．transplantsfrom around 1985，．

5． Total number of Japanese patients whe have gone to China fororgan transplants．
My total from various sources： at least 26．

Sources：Ota， K．， et al，Present status of organ transplantation toJapanese patients in foreign countries，Transplantation

Todの7（Japanese）， Vo1．10 No．4， July 1997， pp．549‑553；

Kubota， K．，

Data and complications of the．patients onwhom kidney transplant operations were performed in Asiancountries，Japanese Journal of Transplantation （Japanese），

Vol． 32， 1997， p．268；Matsuno， R．，

lnvestigative research on the state of Japanesekidney transplant tours in Asia，Bioeth ics （Japanese）， Vol． 8

No． 1， 1998 （under proofreading）；
Awaya， T．'s research， including interviews with brokers，patients， doctors， etc．

6． Payment of Japanese patients for an organ transplant procedure．
15，000，000 Japanese Yen ＝＝ ＄ 115，000
25，000，000 Japanese Yen ＝＝ ＄ 192，000

One case that a broker mentioned： Total payment is 15，000，000
Yen＝ ＄ 115，000．

（1） Chinese hospital： 9，000，000 Yen＝ ＄ 70，000

Japanese brokers say that Chinese hospitals distributemoney for the related police， military， court， etc．．．

（2） Japanese broker's income： 3，000，000 Yen＝ ＄23，000（3） other expenses （transportation， accommodation， etc．）：
3，000，000 Yen ＝ ＄ 23，000

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1998年12月 粟屋 剛 中国死刑囚移植についてのアメリカ連邦議会証言
7． Japanese organ brokers．
All brokers who are involved in the organ trade in Japan areJapanese． Some of the brokers have an lnternet Home Page． Other
means of advertisement are posters inside streetcars or on telegraphpoles． Word‑of‑mouth communication between patients is also an
important means of advertisement． lncidentally， newspaper articles andTV programs about their business （even when these criticize thebrokers） give a big advertisement for brokers to patients．
The system is simple． A patient makes a telephone call to abroker． After that， payment， date of departure， etc． are decided．

Usually patients pay half of the total money before departure toChina． After一 coming back to Japan， they pay the rest． All

arrangements for the operation is done with the China side （hospitalstaff）． lncidentally， most of the brokers are very busy． For example，

when patients are waiting for operation in China， they take patientssightseeing on a no dialysis day！ Brokers want to have a good
reputation in order to get more patients／customers． So they are verykind to patients． 1 met so many organ brokers in lndia， thePhilippines， etc． Most of them were as kind as those Japanese brokers．
But some of brokers are very bad． For example， one Japanese
broker recently ran away after collecting 50，000，000 Yen ＝＝ ＄ 385，000

from 4 patients． This is fraud！ The police are now investigating thiscase．

8． Chinese organ transplant hospitals．

There are so many hospitals which conduct organ transplants
in China． There are no particular hospitals where Japanese patientstypically go． Each broker has his own contacts and arrangements．
Brokers and patients won't tell the name of the hospital，

because they think that if the name of the hospital is disclosed， thehospital might have trouble．

9． My own experience．

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徳山大学論叢第50号

1 wrote several articles about organ transplantation fromexecuted prisoners in China． One of them is Awaya，T．，

Transplantation from Executed Prisoners in China，

Organ
Horitsu Jiho （aprestigious law j ournal in Japan）， Vol．68， No．9， 1996， pp．28‑34．

1 have been to China 5 times since 1995 for my research． Last

time was April 1997 with a Japanese broker and patients． The patients
got new kidneys． 1 spent one week with them and 1 got information．

The patients knew the source of the kidneys． They didn't know

Chinese laws about organ removal and transplants． lncidentally， there
are no laws about organ removal and transplants in China． There areadministrative regulations about them．
In general， Japanese patients who get organs not only in Chinabut also in other foreign countries are indifferent about the source‑oforgans． lt is not important to them where 'the organs come from．
1 have visited several Chinese transplant hospitals． 1 havetalked with Chinese doctors． 1 know most of the complete systems ofChinese organ removal and transplants． ln fact， details are mentioned
in the article， Munro， R．，
in China，

Human R ights

Organ Procurement and Judicial Execution

77atch ／ Asia 2Vewsletter， Vol．6， No．9，

Aug．1994． ln addition， 1 wrote about the system in my above
mentioned article ．

10． My opinion
a． Utilization of ergans from executed prisoners for transplantmedicine．

The thorough utilization and commodification of humanbody parts has been progressing in the world， as a result oflife‑utilitarianism．

Transplant medicine is one of thedriving force of this．

From a contemporary point of view， utilization of the deadbody of executed prisoners for transplant medicine is a
special version of the utilization of the human body， similar
to the utilization of an anencephalic infant body or an一182一

1998年12月 粟屋 剛 中国死刑囚移植についてのアメリカ連邦議会証言
aborted fetus．
In fact， prisoners' corpses have been utilized for anatomy forcenturies all over the world （without their consent）． From ahistorical point of view，山e utilization of the dead bodies ofexecuted prisoners for transplant medicine is an extension of
the utilization of their corpses for anatomy．
Incidentally， there are case'?of organ transplants fromexecuted prisoners not only in China but also in Taiwan，Singapore， USA， etc．

b． The identification of organ transplantation from executed
prisoners in China asorgan'sales．

Can organ transplantation from executed prisoners in China
be called organ sales？ Most articles which appear innewspapers and magazines say so． 1 don't think so． Why？

Executed prisoners in China are never paid for their organs．
（ln some cases， the family is paid some compenSation， but
this doesn't make it an organ sale．） Patients pay money for
operation fee， drugs， and other expenses， but do not pay

money asvaluable consideration

for the organ． Logically，

at least， this means that this is not the sale of organs．

c． The consent of prisoners．

In reality have prisoners' consent been given to doctors

before organs are remQved from their dead bodies？ There are
four types． First： No procedure to get prisoners' or theirfamilies' consent takes place． Second： The procedure is gone

through perfunctorily and their refusal to donate is ignored．
Third： The procedure is gone through and， if they refuse todonate their organs， ．compensation is paid to the family inorder to change their mind． Fourth： The procedure is gone
through and， if prisoners refuse to donate their organs，money for prisoners' expenses （food， lodging， etc．） isdemanded in order to make them change their mind．

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徳山大学論叢第50号

Organ removal from executed prisoners without their consent
is a violation of the Chinese administrative regulation，Temporary Rules Concerning the Utilization of Corpses orOrgans from the Corpses of Executed Criminals． However
this regulation stipulates no punishment． ln general， it has

been said that organ removal from executed prisoners
without their consent is an infringement of the human rights
of prisoners． But even if this is claimed， nothing happens．

And usually it is said that even if patients get organs fromexecuted prisoners without their consent， it is not punishable
because there is no law which punishes it．
From my legal point of view， in general terms， this taking oforgans from executed prisoners' bodies without consent or
payment is the stealing of a human body part． Nowadays
human body parts （organs， tissues， cells， genes， etc．） havebecome valuable things which are given freely or for money． ・When a person is alive， the property of the body belongs tothe person． After the death of the person， the dead body isthe'property of his or her family． （Strictly speaking from alegal point of view， a family's right to the dead body is notcomplete property right．） To whom does the prisoner's deadbody belong？ lt belongs to the family of the prisoner not todoctors or the Chinese government． （There are no laws in

China which stipulate that dead bodies of ordinary Chinese
people or executed prisoners belong to the Chinese
government．） So Chinese doctors are stealing organs！ 1 thinkthey should be punished according to Chinese Criminal Law，Article 264． Japanese patients are receiving stolen， organs． lt

is a crime according to Japanese Criminal Law， Article 256，
Clause l， if they know that the organ is stolen．

How about organ removal from executed prisoners who havegiven their consent？ lt is legal to remove organs fromexecuted prisoners with their consent according to theChinese administrative regulation above mentioned． The
regulation admits the organ removal from executed prisoners
on condition that there is the consent of the prisoner or hisor her family．

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How ・about the ethical view？ Here， it is a problem as towhether the prisoner's consent is voluntary or not． There are

two way of thinking．
1） The prisoner's will to donate organs or not should be
respected even if he or she is a prisoner， if his or her

consent is given voluntarily．
2） The use of prisoners' organs for transplant purposes
is unacceptable， whether prisoners give their consent
or not， whether their consent is voluntary or not， on
the grounds of （a） or （b）；

（a） a kind of fiction that it is impossible forcondemned criminals to give genuinely free consent
because they are in a fundamentally coercive
situation． （Munro， op．・ cit．， p．33）（b） a consideration from policy that a kind of safety
device is needed in order to prevent all the cases inwhich prisoners do not give genuinely free consent，even if， in reality， there are cases of prisoners giving
genuinely free consent． （Awaya， op． cit．， p．31）

d． The role of Chinese government．

In China， organs taken from executed prisoners have beenused from the starting point of transplant medicine． There
are almost no voluntary donors either now or in the past．

Neither have the Chinese government or medical societies in
China made any real effort to get voluntary donors． lt hasalmost been national policy to use organs from executed

prisoners． 1 imagine that the Chinese government had nohesitation or trouble about using them from the beginning．

Fundamentally， transplant medicine cannot． be done unlessthere are voluntary donors． So， fundamentally， transplant
medicine ca皿ot be done in China． This is a case oftechnology making a nation lose its moral values．

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徳山大学論叢第50号

Incidentally， the Chinese government does admit organremoval from executed prisoners with their consent． （lt islegal according to the administrative regulation mentionedabove．） But in reality， the Chinese government has tacitly

admitted organ removal from executed prisoners without
their consent， even if， as mentioned above， it means organstealing．

On the whole， Chinese government has been pushing ahead
with organ transplants from executed prisoners， whether theygive their consent or not， as a national policy． 1 believe thispolicy to be a violation of human rights and to be unethical．

As mentioned above， there are no laws in China which
stipulate that the dead bodies of ordinary Chinese people orexecuted Prisopers belong to the Chinese government．
Therefore， although it has the property rights to Chinese

land， the Chinese government has no property rights to deadbodies of executed prisoners！
e． lnj ection as a method of execution in China．

Recently・the Chinese government has been changing themethod of execution from shooting to injection． The previous
Chinese Criminal Law stipulated shooting as the only
method of execution （Article 198）． But a new Chinese

Criminal Procedure Law 1997 stipulates both shooting andinj ection as methods of execution （Article 212， Clause 2）． So
the inj ection as a means of execution is legal． Execution by

inj ection is very reasonable and convenient for the purpose oftaking organs． lt goes without saying that this will create‑avery dangerous situation．
f． Brain death theory and contract‑out approach in China．

Recently some Chinese doctors have begun to assert thatbrain death equals the death of a person． Some other doctors
have begun to assert a so‑called contract‑out approaches；
unless the deceased expressed an opposite intention about theremoval of his or her organs during lifetime， doctors can

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1998年12月 粟屋 剛 中国死刑囚移植についてのアメリカ連邦議会証言
remove the organs after his or her death． What will happen
when these approaches are accepted in China？ Surely， as

great number of organs can be removed from ordinary
people， doctors won't need to remove organs from executed
prisoners． 1 imagine， however， that such a solution would

generate new， more serious， problems．

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徳山大学論叢第50号

質問事項を示した合同委員会からの文書（1998年5月21日付）
On June 4， 1998， at 10：00 am in room 2172 of the Rayburn

House Office Building， the House Committee on lnternationalRelations and the House Committee on Government Reform andOversight will hold a j oint hearing on
People's Republic of China．

The Sale of Body Parts by theWe are writing to invite you to testify atthis important hearing．
Our Committees have been informed that you are an expert on
the subj ect of organ transplantation and are prepared to discuss how

wealthy patients are lured to China， where they knowingly receive

organs from executed Chinese prisoners．
In addition， we are told that you can tell the Committees how

Chinese brokers recruit patients and how much the patients must pay
for theseservices．

We understand that you will also be able toprovide statistics regarding the level of traffic the market for organs

from executed Chinese prisoners generates in your nation．
Specifically， we would like you to address the following

questlons：
1． ln October of 1997， the Japanese government passed a law

making the buying and selling of human organs by Japanese citizens
illegal． Before the passage of this law， to which foreign countries did

Japanese transplant patients go for new organs？ Since the passage ofthe law， where have they tended to go？ Why？
2． ln Japan， what is the legal distinction between

saleof anorgan and a package of hospital services that includes a transplant

operation？
3． How do you know that org'ans transplanted in China comefrom executed prisoners？ ．

4． For how many years have patients from your country been

going to China for kidney and other organ transplants？

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1998年12月 粟屋 剛 中国死刑囚移植についてのアメリカ連邦議会証言
5． To the best of your knowledge， how many patients fromyour country have gone to China for transplant一 operations？
6． How much does a typical transplant patient pay for an

organ transplant procedure in China？
7． Where do the brokers who set up these transplant operations

come from， how do they conduct their business and what sorts of fees
do they charge？
8．， To which Chinese hospitals do Japanese transplant patientstypically go？

9． Have you ever spoken with patients who return from China

with new organs about their experiences there？ Have any of thesepatients discussed how the organs are obtained and from whom theycome？ Have any of them discussed the Chinese laws governing organ

donation procedures？
10． What are your professional and moral opinions regarding

this system which has evolved in China？

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