Since Huang Jiefu, vice minister of health of the Two Sessions, proposed in 2014 to gradually abolish the current situation that domestic organ transplantation mainly relies on organ donation from executed prisoners within 3 to 5 years, there have been more and more reports on this issue in the domestic and foreign media, and how to treat the issue of organ donation by death row prisoners has become the focus of public opinion.
Medically speaking, organ donation is an act of promoting the humanitarian spirit and donating one's own body and organs to others to save their lives. Organ donation by death row prisoners is no different from that of ordinary people in terms of technical operation. However, from the perspective of ethics and jurisprudence, organ donation by death row inmates is controversial based on the particularity of the status of death row inmates, because people are worried that the organ donation of death row inmates whose freedom is restricted and the right to life has been deprived will become "donated", and there are more concerns that institutions and individuals will profit from it.
From a legal point of view, everyone enjoys the right and autonomy of the body, and can donate their organs and even their remains according to law. Criminals as human beings clearly enjoy such a right as well. Although the death row inmate has been deprived of the right to life in accordance with the law, his other personal rights are not restricted until his life is terminated, and he can still exercise it freely in accordance with the law. Therefore, death row inmates also enjoy the right to donate their own organs and even their remains according to law. In the current situation where organ transplantation in various countries is generally trapped by the lack of donor organ sources and donating organs or remains to save others can indeed provide some death row prisoners with spiritual comfort, organ donation by death row inmates should not only be ethically praised, but also legally permitted.
The reason is that for those death row prisoners who are willing to atone for their sins, the law's refusal to donate their organs is tantamount to denying their right to repentance and depriving them of the opportunity to redeem their souls. This is undoubtedly inhumane to death row inmates.
On the contrary, the law allows death row inmates to donate their own organs or bodies independently, which not only fully demonstrates the protection of the law for their right to the body and autonomy, but also shows the minimum respect of the law for them as a person and a social subject, but also reflects the civilization of a society, especially the civilization of the rule of law in this society. In other words, the fact that the law allows death row inmates to donate organs actually means that our society, our laws, is civilized and humane enough to examine and treat criminals as a human being.
Of course, for organ transplantation in a country and region, the vast majority of its donor organs from death row inmates is also an abnormal state, which is actually not conducive to the healthy development of organ transplantation. Because of this, the laws of most countries and regions will maintain sufficient rationality and restraint on the issue of organ donation in their own countries, and limit the donation of organs or remains of criminals by setting up strict procedures to ensure that the donation of their organs or remains by criminals is based on true autonomy and voluntariness. To a certain extent, this guarantees the standardization of organ transplantation for death row prisoners.
As a long-standing phenomenon in the mainland, organ donation by death row prisoners has been concerned by the mainland people and avoided by the government in the past. The main concern of the public lies in the authenticity of the will of death row inmates to donate their organs, since in cases where death row inmates have been deprived of their right to liberty and life in accordance with the law, it is difficult to guarantee that their willingness to donate organs or remains is a true and effective will. The government's concerns stem more from the sensitivity of organ donation from executed prisoners, which, if missed, can easily be used by some foreign media or politicians as a pretext to attack the human rights situation of the Chinese government. The author believes that the above concerns of the public and the above concerns of the government are not unreasonable.
But if it is therefore forbidden for death row inmates to donate organs, it is clearly unnecessary, or even unreasonable. The reason is that the problem of using the organs of death row prisoners against their own will can be completely resolved by law, and as long as strict conditions and transparent procedures for the use of organs of death row prisoners are set up in the law, the infringement of the personal rights and interests of death row prisoners can be avoided.
Strict conditions can demonstrate the government's determination and strength in strengthening the management of organ transplantation to protect the human rights of offenders, and prevent and reduce the misconduct of individual institutions or personnel in the use of organs by death row prisoners; Transparent procedures can expose organ transplants involving organ donation from executed prisoners to the sun and subject to social scrutiny.
The Ministry of Health of the mainland has made it clear that it will gradually eliminate the current situation in which domestic organ transplants mainly rely on organ donations from executed prisoners within 3 to 5 years. But to achieve that goal, it is clear that the law needs to do a lot of work. Specifically, in the "Regulations on Human Organ Transplantation" indicated by the relevant departments of the mainland that they will be revised, consideration should be given to making clear provisions on the issue of organ donation by criminals, especially death row inmates, and setting stricter conditions and procedures for them than ordinary organ donation.
For example, the law may require that the organ donation of a condemned prisoner must be in writing, must be notarized by a notary public and witnessed by his family or lawyer, and that the donation of organs or remains by an offender must not be accompanied by an economic request, etc.
In addition, in view of the problem of illegal trade in the organs of executed prisoners arising from the sale of organs in practice and the rise of the phenomenon of human organ transactions that may be brought about by restricting the donation of organs by death row prisoners, the Criminal Law should increase the scope of prevention and punishment, not only limiting the punishment for human organ trading to the narrow crime of "organizing others to buy and sell human body", but also setting up more direct and specific crimes such as "the crime of buying and selling human organs" and "the crime of disseminating and publishing human organ transaction information".
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