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Joint Standing Committee on Foreign Affairs, Defence and Trade
13/06/2017
Measures to prevent organ harvesting

CHAPMAN, Professor Jeremy Robert AC, Private Capacity

FRASER, Dr Campbell, Private Capacity

MARTIN, Dr Dominique Elizabeth, Co-Chair, Declaration of Istanbul Custodian Group

O'CONNELL, Professor Philip John, Immediate Past President, The Transplantation Society

Evidence from Dr Martin and Professor O'Connell was taken via teleconference—

Committee met at 12:45

CHAIR (Mr Andrews): Welcome. I open this meeting of the human rights subcommittee. This is a private briefing, both in person and via teleconference, and it follows the interrupted briefing that we had on 9 May. Hansard will be transcribing this meeting to record the information for background purposes only, and the transcript will not be made public. Would anyone like to make an opening statement?

Prof. Chapman: Our position is that we are here to speak on whatever you need and whatever direction you want. In terms of the global trafficking of organ donation, you have four people here who have spent 15 or 20 years studying this, and we could occupy quite a lot of your time just talking. On the other hand, if there are issues that you want us to discover and discuss, I think you will get four views of each issue.

Dr Martin: You might think that Australia has very limited involvement in organ trafficking internationally, and I think we are fortunate that we can be assured that what happens in Australia is in general amongst the world's best practice, both clinically and ethically. However, we have quite an influence on what happens internationally, perhaps because we have this reputation for excellence clinically and scientifically. So I think it is particularly important that Australia takes advantage of opportunities that we may have to help ensure that organ trafficking is eliminated elsewhere in the world as well. So I commend the committee for holding this meeting and working on this issue.

Prof. O'Connell: I support the previous two speakers' comments. I would also like to say that I think there are some lessons to be learned for Australia. In particular, having a strong organ donation program is essential to reducing the moral hazard for patients to go elsewhere to get transplantation. I think the government is to be commended for the investments it has made over the last seven years in this area, and I think that has gone a long way to putting us on the right side of what is going on here.

Dr Fraser: I have supplied a transcript of a speech I gave back in April at a conference, which I believe has been distributed to everybody this morning. It just gives an overview of some of the claims that are made, particularly in the China context, and how that relates to the political activities of the Falun Gong. This probably goes into a lot more detail about the actual beliefs of Falun Gong practitioners, but I think out of that maybe you can draw some points that you might want to ask us questions on, specifically on how it relates to the claims of organ harvesting. I would draw your attention to that, and you may perhaps want to contact me for some clarification on any element of that.

CHAIR: And that leads us into the discussion, because this arose because Falun Gong raised the matter with the committee and we had Mr Kilgour and Mr Matas come and brief the committee. In a nutshell, their claim is that there are unconsented donations occurring in China at a rate of 60,000 to 100,000 a year. What I understood from the previous time we were discussing this is that each of you rejects that number and says that whatever might have happened in the past—if I can paraphrase your previous evidence—that is certainly not the situation today.

Dr Fraser: That is correct.

CHAIR: That is correct, Dr Fraser, yes. Professor Chapman?

Prof. Chapman: It was never 60,000 to 100,000. It was 6,000 to 10,000 potentially, but never 60,000 to 100,000. What we were dealing with was probably in the region of 6,000 to 10,000 in the early 2000's. The number of 60,000 to 100,000 was a concoction of recent days.

CHAIR: What level of confidence do you have that the practices in China have changed?

Prof. Chapman: I will give you my thoughts on that, and then I am sure the others will come in with different perspectives. We had watched the processes and we had been disappointed, until December 2014, that they were not prepared to make the statement that they would stop the use of executed prisoner organs. They did make that decision in December—I think it was on 4 December—2014, to be implemented in January 2015. I am sure you would be pleased with such rapidity of action if it were to come from this house and be implemented in three weeks.

It is my view that the majority of large hospitals, by December 2014, had made the decision that there were potentially more organs from their intensive care units than there were from being beholden to their execution timetables and their prisons and the existing power structure that delivered organs to some hospitals and not to others. They moved across very quickly from a group of 11 hospitals undertaking what they called DCD or DBDDCD—donation after circulatory death or from patients who were brain-dead, but there is no law for brain death in China, so they were brain-dead first and then their hearts stopped—so they were able to supplant the practices that they had for executed prisoners with an alternative source of organs at a level which was compatible with what we were seeing when we visited the hospitals. So the first comment I would make is that it was plausible that there had been change.

There are a couple of exceptions, which we have watched with dismay and disdain, where there probably was a continuation of the use of the old ways. We saw the change, we saw them make decisions about the change and we saw them prepare for the change. The other thing that we saw was the way in which the foreign recipients changed. Others would comment on that, but I have seen many presentations from some of the source countries—the patients who would buy the organs. From Malaysia to Saudi Arabia, two things happened.

Firstly, the numbers travelling overseas declined, particularly in Saudi Arabia. Secondly, the places they went to changed considerably. Initially, the change was out of India, Pakistan and China, where they were going previously, with most of the Middle East going to China, towards Egypt predominantly. Pakistan has come back; Sri Lanka is back and India, in parts, is back. I know Campbell has just been there. But it is not China that is back. When we look at the graphs of where patients have come back from, it is not China now. This is an external verification for us that the numbers travelling into China have changed. As the penalties for transplantation of foreigners within China increase, those numbers have decreased. Again, that is plausible.

When we go around Chinese hospitals as physicians to visit them and understand what is going on, what we see are mostly young Chinese and quite a lot of poor Chinese in the hospitals but, mostly, it is not recent transplants in the hospitals. While a hospital may have expanded to have 40 transplant beds, you cannot invoke the same number of transplants as you would in an American hospital.

To give you some idea of the difference, they would have to have between three and four times the entire US transplant program implemented in China. Because of the difference in the capacity to manage them, you would probably have to multiply that by 10 because of the different practices. Thirty to 40 times the US infrastructure—doctors, surgeons, operating theatres and medications—and not being able to see it is just implausible to us.

Dr Fraser: I have ongoing relationships with a number of transplant physicians—nephrologists, primarily—in Malaysia. If we go back to the early 2000s, because there was really no robust deceased donation system in Malaysia and a very high percentage of Chinese population in Malaysia, the norm was, if there was a Malaysian patient who required a transplant, they would be officially and formally referred by their doctor to China. What is happening now, since the middle of 2015 onwards, is that those referring physicians that I talk to on a monthly basis are telling me that they are trying to get their patients into China but they are being refused entry into China for transplantation, and they are now sending the patients to Egypt. There have been a few who have gone to Pakistan, but the majority are now going to Egypt. I have been unable to trace any foreigners that are going back to China. The only ones that are going back to China are those who have legitimate family connections there. That would be a starting point where we have really seen a change in the direction of where people who are seeking commercial transplantation go.

In terms of numbers, I was very curious to try and actually meet with people who claim that they had been tested for forced organ donation. I engaged initially with the Falun Gong leadership.

What seems to be happening to them is, yes, they are held in what are called re-education centres. You know the Chinese government has clamped down on Falun Gong. We certainly do not deny that, and the idea of those re-education centres is to make those practitioners denounce Falun Gong. It seems to me that they claimed they were eligible for release from these re-education centres if they signed a document denouncing Falun Gong practice. But what they told me was that, when they were detained in these centres, they must have been tested for organ donation because they had blood removed—they had had blood tests done. When I asked them, 'How much blood did you have removed?' they said they had two 10-millilitre vials of blood taken. I have consulted with my clinical colleagues, and we do not believe that two vials of blood is anything like what is required for testing for tissue typing, blood grouping and all the other tests that are required. We believe that the testing that was done was testing for communicable diseases, as would be done on anybody who was going into an incarcerated situation.

The testimony that they gave me was a prepared speech that they had been given by the leadership of the Falun Gong. When I interviewed them, they were literally sitting there with the instructions they were given to read out to me. They also had a minder from The Epoch Times.

The Epoch Times, as you may know, is the newspaper of the Falun Gong. It is there purely as an opposition to the Chinese government. What I believe—and you can see this in the transcript of the speech that I have given you—is that, although the Falun Gong initially started as a peaceful, meditation-based, faith-based activity, what has actually happened now is that a number of anti-China, anti-communist activists are now using that as a vehicle to make their claims against and to try and undermine the Chinese government.

Because the Chinese government do and have in the past used executed prisoner organs, what they are now trying to do is use that as—they are really putting all their eggs in that one basket, saying it is primarily Falun Gong practitioners who are used as the supply of these organs. I cannot find any evidence that Falun Gong practitioners are being used specifically. It may well be that somewhere they have got into the mix, but it is only those that are sent to specific prisons, often run by the People's Liberation Army, who end up with capital punishment. I cannot find any evidence of capital punishment for Falun Gong practitioners.

So there is enormous social pressure on them not to denounce the Falun Gong. They are actually encouraged by the leadership, once they are released, to go back out into Chinese society and hand out leaflets denouncing the Chinese government and to throw rocks at Chinese police stations. If I go to China and I start throwing rocks at a Chinese police station, I am going to end up in jail too.

It is all in this transcript that I have given you. The Falun Gong in the US are specifically encouraging martyrdom of very vulnerable people. A lot of the people who are finding support in the Falun Gong environment are very vulnerable people; they are people who are looking for some meaning in life and so on. That has been capitalised on by those who are seeking to undermine the Chinese government. Because the Chinese government have been using executed prisoners, they have now decided, 'Let's use this as the way to try and show how horrific the Communist Party of China is'. The reason they are having such a negative reaction to us is the fact that we are saying this is not true. Because they put all their eggs in this, we are now seen as a great threat to that story; because, if they lose—if the stories that they are creating are discredited—then they kind of lose their whole argument that they have been working towards. For their own survival, they now have to really perpetuate this story that is going on.

CHAIR: Dr Martin or Professor O'Connell, do you want to add something?

Prof. O'Connell: I think, as well as the issues that are [inaudible], there would be a lot of things that have changed progressively over time. Everyone says: 'Well, in 2015 they made this pronouncement and everything changed. How did that happen?' In actual fact, to get to 2015 was a long, long haul. Following that through, it started, really, in 2005, when Jiefu Huang convinced the Chinese government to register transplant centres, and they reduced the number of transplant centres from 600 to 168. I think everybody who has read [inaudible] could understand the political pressures if in Australia we reduced by two-thirds the number of centres of anything in hospitals. That took a bit of effort and influence with the central government. They then brought in, in 2007, a set of regulations where they started to ban foreigners from attending transplant centres and receiving transplants in China. I think it was also from about that time onwards that we started to see massive reductions in the number of live transplants [inaudible] countries like the Middle East, the US and parts of Australia. Certainly Chinese [inaudible] saw a reduction in the number of foreigners going to China for transplantation.

The proof that there had been a marked reduction in the number of foreigners seeking transplants in China was given when we attended the Pontifical Academy of Sciences meeting on organ trafficking. All countries who were represented, and I think that was about 80 countries, put forward their data, as best they knew, of people who had travelled overseas for transplantation and of those who had gone to China. Country after country had a peak of their nationals travelling overseas in about 2007 and a great reduction—a virtual drying up—over time. What works might occur in one country when you see country after country. It was very reassuring to see that there had been real change within China.

They then produced the Huangzhou resolution. They tightened their regulations in December 2014. They brought in regulations within the judicial system that high court approval was required for all capital punishment, so all death sentences had to be approved by a central authority. They had to then get approval centrally for those organs to be used for transplantation, which again reduced the availability of organs from executed prisoners. Then, in 2015, they made that announcement. So, if you saw how progressively there was reform in China and you were able to witness those changes, it was not surprising that in 2015 they made that change.

There has been systematic and progressive change within the government, and they have now got a registry system called COTRS. You have to register all donors, and it then traces who those recipients are who receive those organs. It is fairly clear that, if you are operating within that system of COTRS, for the large part, as best as we can ascertain, this is a legitimate [inaudible] transplantation. They do not say that everything is ethical [inaudible] In a country of 1.3 billion people, there are practices that we might not agree with or would be illegal in Australia, but on the simple [inaudible] of using organs from executed prisoners, selling those organs to foreigners, in a totally corrupt system that is mistreating your own population, I think the vast majority of centres have changed that. My personal experience would also confirm that. I have been to a lot of centres in China. In the centres that I have visited, I have spoken to the surgeons, the junior staff and the intensive care doctors and I have seen the organ procurement agencies. Whereas in the past they were very closed and circumspect about what they were doing, now they are far more open, taking us on walk-arounds, allowing us to see any patient, allowing us to ask questions of patients. In the hospitals that I have visited, I am convinced there has been a profound change.

CHAIR: Dr Martin, did you want to add to that?

Dr Martin: I will try to be brief. I have not had the personal experience in China with the medical community in terms of transplantations. So I have not visited and I cannot report on what I have seen with my own eyes. But, as co-chair of the Declaration of Istanbul Custodian Group, and over the last five or more years that I have played a leading role in that group, I have had conversations with a lot of people internationally and I am familiar with the international data. The methodology by which these large estimates have been derived simply does not add up. It is really a gross overestimate of any kind of transplant activity that has been taking place in China in the past and certainly is not something that I would look to for figures on what is actually happening in China.

With regard to the evidence we have of people not going to China for transplants from abroad, certainly we are no longer receiving nearly as many reports about patients returning after having transplants in China. There have been occasional reports.

We do know that China faces new threats in terms of ethical practice. One concern I have is that they are now offering financial incentives to families to agree to donation after death, which of course is preferable to executing people to take their organs but is not something that much of the international community would endorse. They also have had problems, like other countries in the region, with living-donor trafficking—people who are paid to sell a kidney or part of their liver while alive—and they have had some busts of trafficking rings.

They have new problems to contend with, but stories that we used to receive, the data that we used to see, in terms of people going there and being able to get an organ on demand from an executed prisoner, is no longer being received.

CHAIR: Thank you, each of you, for the response in relation to China. I would like to move the conversation—I am aware of the time as well and we will be off to question time soon—to what more, if anything, we in Australia could be doing in relation to what I think you described, Dr Martin, as transplant tourism. I note that, in that context, that you were all participants, I think, in the conference that the Vatican organised in February this year in which it made a series of recommendations. One was:

That governments establish a legal framework that provides an explicit basis for the prevention and prosecution of transplant related crimes, and protects the victims, regardless of the location where the crimes may have been committed, for example by becoming a Party to the Council of Europe Convention against Organ Trafficking.

I also note, in this context, the bill that has been introduced into the New South Wales Legislative Council by Mr Shoebridge relating to trafficking in human organs.

I suppose, as we are having this inquiry, the question is, as I said at the outset: what, if anything, more do you believe that we in Australia could be doing to ensure that there are ethical practices in place not just here but, generally, across the globe?

Dr Fraser: What we can really do is work with countries in developing environments to help them develop a deceased-donation system. Most people who are purchasing organs on the black market or on the commercial market are, generally, fairly wealthy people coming from countries that do not have a deceased-donation system. They are people who, if they do not have a relative who is willing to do a live kidney donation, unless they go and buy an organ somewhere else, are not left with any other solution. As they see it, they will stay on dialysis.

What we can do is work with our partners in developing countries to develop deceased-donation systems. That way, even though there are lengthy waiting lists, at least for people who are waiting for an organ, there is hope, there is the prospect of light at the end of that tunnel; there are options for them. That is probably one of the biggest roles we can play here, trying to develop good practice in that. We are doing a lot of that work in India, for example, at the moment. Deceased donation is a great way of combating organ trafficking in the long run. That is an area we really need to focus on.

CHAIR: Professor Chapman?

Prof. Chapman: I have a brief comment about the Australian situation in 2008. This parliament changed the governing acts for tourism into this country. I have read the act several times and completely fail to understand it, but the effect of it has been to put the intent to traffic into this country as a criminal offence. Prior to that, you actually had to do the operation to prove that it was going to happen. And that has been a very good step and an important international exempla.

There is conversation about extraterritorial jurisdiction with respect to human-organ trafficking in the same way as there is with paedophilia. My view is that it is unlikely to be more than a symbolic process. The reason is that we see between five and 11, I think, patients coming back to this country. They are recorded in the ANZDATA Registry as transplanted overseas. On the basis of our own experience over the last 15 years at Westmead Hospital, Phil and I have very good reason to believe that at least one-third are completely legitimate. For example, I have two brothers. They both live in the United Kingdom. If I needed a transplant, either they would have to come here or I would go there. We have may others that are like that. Maybe two-thirds are less easy to be clear about. They are almost all, without exception, individuals who have gone back to their country of original origin. They come back and tell us that they have had an organ from their nephew or their uncle, and, of course, we have no way to refute that claim. Unless there are significant investigative powers to trace down the source of the donor in those individuals, I do not see its practical application.

The other issue is, of course, that, at this point, you require their doctor to identify them as a potential human-organ trafficker. That places the doctor-patient relationship under considerable stress. It is a conversation for doctors. I think that most of us would not give the benefit of doubt to trafficking but would give the benefit of doubt to the statement made by the individual. Would it have a deterrent effect? I do not know, but, conceivably, that is the only issue within the country.

I think Dominique Martin should comment on the Council of Europe treaty, which, as with many Council of Europe treaties, is designed to be signed onto by many countries other than those in Europe, possibly even Britain in the future. It has been thought through very carefully, which, I think, all of us in the field are very supportive of.

Dr Martin: I, personally, think the Council of Europe convention is very good and, if Australia were to sign that, that would be helpful in terms of making a symbolic commitment that encourages, potentially, the application of extraterritorial jurisdiction but does not mandate it, if I understand it correctly.

A lot of what the convention does is to provide very clear definitions of the forms that trafficking can take, and they are currently developing tools that would help to support the collection of data that would, in turn, inform strategies to help address and prevent trafficking. One of the things that they are currently looking at is guidelines for the screening of living donor-recipient pairs. That is something where Australia could and should be involved, in terms of supporting and strengthening the practices in the ASEAN region.

One of the reasons it is so difficult for us to know whether a transplant for a patient who goes back to India or Sri Lanka or Pakistan has involved trafficking is, at the other end, they also do not know. They find it very difficult to evaluate foreign patients coming in. Patients have signed documents attesting that they were related, and the weakness there is the ethical review committees who lack the understanding of the red flags of trafficking and who lack the knowledge of what constitutes a valid documentation of citizenship or relationship. That affects not just the Philippines but India, Pakistan, Egypt—everywhere. If we could help those countries and work with neighbouring countries, like Singapore, which has reasonably robust practices, we could, potentially, have quite a major impact on trafficking in the region.

CHAIR: Professor O'Connell, would you like to add something on this?

Prof. O'Connell: I would. Internally, the thing that has made a big difference in Australia is the establishment of the Organ and Tissue Authority. We have had a doubling in transplantation in this country as a result of the investment the Australian government has made in this area. This means not only are more Austrlians able to receive a transplant; it takes the pressure off patients who might otherwise be tempted to go overseas, because they know they will get the best care in the world here and they will get a transplant.

As Campbell Fraser pointed out, unfortunately, in many countries they lack a viable organ donor program, and that puts patients in moral hazard; they know there is a treatment available but they cannot access it. So I think, in an external sense, Australia has a great role to play in supporting international efforts that are [inaudible] ongoing, such as by the World Health Organization which has a register of worldwide transplants and it is now providing very robust data that gives us the ammunition to try and assess and understand how much traffic is occurring.

I also think that we should look at international efforts in the healthcare sense. At the moment, every year, three million people worldwide die from end-stage renal failure, never getting any care—no dialysis, no transplantation. Africa is a problem waiting to happen. Introducing transplantation into a region like that is extremely difficult. The patients are sold the idea that a surgeon does the transplant and all their problems are solved. We know that transplantation is quite complex; you need a very sophisticated healthcare system to be able to deliver that kind of care. It is a challenge for developing countries. I think any way we can assist them to do that and introduce a legal and viable alternative, would be positive in reducing trafficking, because if you do not do that, all that will happen is that the destination where it occurs will change.

The final [inaudible] I think the principles outlined in the Council of Europe treaty [inaudible] international colleagues and I know The Transplantation Society [inaudible] a good sort of announcement of what is required to reduce this practice. Thank you.

CHAIR: Thank you.

Dr Fraser: I want to quickly add to that. A renal transplant performed in Australia has a success rate in the 95 per cent or 96 per cent range. A commercial transplant done in Pakistan or Egypt is probably 55 per cent or 60 per cent. Even with that, patients are going to come back with very poor quality surgery, and very probably with infections. These infections can be fatal. What we do really well here—and the clinicians can speak to that better than I can—is the education of the patients; telling them that you really are rolling the dice if you go to these countries and have this done. There is a very strong chance that they will die if they do that. People disappear away from dialysis centres; they do not tell the doctors that they are going for one of these transplants; and some of them just do not come back.

Prof. Chapman: I just wanted to give you a strategic view of what has been happening. A number of us have been working since the early 2000s to deal with this issue. We decided right at the beginning that we needed both a governmental and professional approach to this. The governmental approach was the World Health Organization guiding principles—a reaffirmation of those—and a re-endorsement of revised guiding principles. The second governmental process was the Council of Europe treaty. From a professional perspective, we established the Declaration of Istanbul, which you have come across, and the pontifical academy is the second. Why have we had to go around twice? Because, while we got a dip the first time, it is coming back again in different places. It is like those things where you squeeze them down and they spring out somewhere else. It is always going to be a job and it is always going to be a pressure. The fundamental changes that need to happen are unlikely to resolve this forever. It is always going to need control systems as well as support systems to prevent organ trafficking.

CHAIR: My next question is in relation to the bill in the New South Wales parliament. Do any of you have any comments about either the desirability or the substance of it?

Dr Martin: I cannot quite recall the specifics of it. I recall seeing it a few years ago. My first comment would be that there is not much point in having extraterritorial jurisdiction just for one state. We have seen how that has played out with commercial surrogacy. There have been no prosecutions and it does not seem to have had any kind of deterrent effect. If something is to be done that addresses organ trafficking, I would suggest that it be done at the national level. That is not to say do not do it in New South Wales, but I think, really, it would be best if that were considered at the national level.

Dr Fraser: First of all, many of the patients who are travelling overseas, when they come back they will be giving as the story that it was from their cousin et cetera, therefore it would be very difficult to get definitive proof. Also, when transplant patients come back, they are going to require intensive follow-up treatment for a number of months after the transplant. The actual transplant operation is actually only the first step of a very long journey back towards health. For the first few weeks after a transplant, the patient is going to have to attend an outpatient clinic every day for the first month and every second day for the next three months until the level of medication is worked out, any complications are dealt with and early rejections are dealt with. To concurrently have criminal proceedings against these people would be extremely difficult to administer both from a practical level and an ethical level because somebody who has just had a transplant is still very ill. They are not coming back as healthy individuals. They require very careful follow-up procedures. It is really only about six months after a transplant that patients can really be living a normal life. Even after that, every two to three months they are still requiring follow-up treatment.

Prof. Chapman: Malaysia has prevented access to transplant medication from their national health service for patients returning from overseas with a transplant. In that context, the problem is that most of the people who can afford to go overseas can afford to buy the medication. In an Australian context, I think it would be possible to modify that to say that anybody who went overseas without a prearranged follow-up for their transplant has no access to the Australian health care system, but that would be really tough to implement. I think we have good controls in Australia. I think controlling what a few people do going overseas—and we are talking about five to 10 people a year maximum—is a struggle. Potentially, some more statements may help. The international exemplar that Australia offers to others is a good organ-donation system, a good ethical system and a good reporting system so that we know all of the transplants that occur in this country.

Prof. O'Connell: I think it would be difficult and counterproductive to have jurisdictional laws against patients. The other thing is, what are we trying to do here? Looking at the ANZDATA—I have just pulled it up—in 2014, which is the latest data I have, three Australians travelled overseas for transplantation. That is for both legitimate and illegal transplants. In 2013 it was three; in 2014 it was four. We are not talking about a massive problem here. The other thing is I think it would be better to gain the patient's trust, identify where they had that transplant and try and provide information to international authorities who would be able to put pressure on that system to shut it down rather than [inaudible] harassing the three people who came back and in the end not ending up with any convictions. It would only mean that they give no information; they would come back with less information. We would actually be worse off. I would suggest we go with cooperation to obtain the information.

CHAIR: Can I thank all of you for participating today. We will send you a copy of the transcript. If there any instances where we have not picked up what you have been saying, Professor O'Connell or Dr Martin, please note the changes and send that to the secretariat. This has been a very useful opportunity to hear from experts in the field who have experience over a long period of time. Your professional advice will be taken into account by the committee when it deliberates on this matter.

Committee adjourned at 13:41