Tue, Jun 05, 2001 page2

• The grim reality of death row organ removal

  A rule that allows organs to be harvested from executed convicts in as early as 20 minutes after death is in conflict with other government regulations that say 16 hours must pass before a person can be declared clinically dead

  • By Jou Ying-cheng / STAFF REPORTER
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  Amid a legal conflict and concern from the international community about the procedure for determining brain death, the Ministry of Justice is to review regulations governing the removal of organs from executed criminals for transplant surgery. But there seems little hope of resolving questions regarding the practice more than ten years after it started.

  With a shortage of organs for transplant, and under pressure from surgeons, the justice ministry in 1990 amended the Regulations for the Execution of the Death Penalty (執行死刑規則), an administrative decree that allow death row inmates to donate their organs after execution.

  Before 1990, all condemned prisoners were executed by a shot through the heart. In order to maximize the number of organs obtained from executed prisoners and to ensure the quality of those organs, the 1990 amendment also said that in cases of prisoners who had consented to donate their organs, execution could be carried out by a shot to the head instead.

  

  The body of notorious former convict Chen Chin-hsing is rushed to the Chang Gung Memorial Hospital in Linkou, Taipei County, for organ removal after he was executed on the night of Oct. 6, 1999. Before his execution, Chen donated his organs for transplantation. At his side is his wife, Chang Su-chen.

  TAIPEI TIMES FILE PHOTO

  This method also helps to keep other organs in a condition suitable for transplant.

  The executed prisoner, however, must be "saved" on a life support system which includes the provision of a continuous blood transfusion, while being transported from the execution ground to the operating room. But the practice is beset by a legal problem.

  Legal Ambiguity

  The revised Execution Regulation says that a prosecutor and doctor must examine the prisoner to ascertain whether he is brain dead 20 minutes after the shooting before he can be moved to a hospital for organ removal.

  This requirement, however, conflicts with the Human Organ Transplantation Act (人體器官移植條例), which became law in 1987. The act authorized the Department of Health to define the legal procedure for determining brain death.

  According to the Brain Death Determination Procedure (腦死判定程序), issued by the health department in the same year, at least 16 hours of observation and two examinations are required before brain death can be declared.

  Executed prisoners therefore have their organs removed before they are legally brain dead.

  Despite the legal ambiguity and the debate about the practice, neither of the regulations has been changed.

  The question was raised again recently when the health department was drafting amendments to other articles of the Human Organ Transplantation Act. In a cross-ministry meeting in April, the justice ministry proposed that the health department set another standard for the brain death determination procedure for executed criminals, so that the current practice could be legalized.

  "When the act and the procedure were introduced in 1987, the case of organ donation by executed criminals was not taken into account," a senior justice ministry official said. "Indeed, in normal cases the procedure for determining brain death should be strict because the concern is to save the patient's life by any means possible ... But when it comes to executed prisoners, the concern is very different."

  The health department refused the proposal. Its position is that the same brain death determination procedure should apply in all cases, because the definition of "brain death" is a medical matter and should not be changed for non-medical reasons.

  The justice ministry is therefore considering changing the Execution Regulation again, to remove the term "brain death" in order to eliminate the conflict with the act, a solution which would bring its own problems.

  A health department official, who declined to be named, acknowledged that the issue is by no means a simple one for the department.

  "If we can accept ordinary people showing their compassion by donating organs, why should we refuse the right to death row prisoners, when we believe that people are equal?" she asked.

  Behind the practice was a serious shortage of organs for transplant surgery, she said, citing statistics that in the US annually, 25 of every one million people donate their organs while the figure per million in Taiwan is only four.

  She added that some 6,000 patients require organ transplants each year, though there are only about a hundred donors annually.

  "No one would have really wanted to use the organs of executed prisoners for transplant surgery had there not been so few other sources of donation," the ministry official said.

  So why not revise the law, as the justice ministry suggested, to meet the demand? She said that the primary reason was pressure from the international community.

  Human Rights

  International human rights groups have criticized the transplanting of organs of executed prisoners as a violation of prisoners' human rights. In Taiwan, opinion on the issue is also divided.

  Chu Shu-hsun (朱樹勳), a professor at the College of Medicine at National Taiwan University and director of the Far Eastern Memorial Hospital (亞東醫院), a leading figure pushing for the 1990 and 1991 revisions of the Execution Regulation allowing organ donations by executed prisoners. He denied that the practice violated human rights.

  "Many foreigners wrongly believe that judges connive with doctors to hand down death sentences in order to harvest organs, just as has been widely reported in the case of China," Chu said. He has received and replied to countless protest letters from overseas.

  "But Taiwan is a democratic country and such things are simply impossible here. We should not be swayed by opposition based on such misunderstandings."

  Currently the removal of organs from executed prisoners is performed by a medical task force from Chang Gung Memorial Hospital (長庚紀念醫院). The convener of the task force, also the president of the Transplantation Society of Taiwan, Jeng Lung-bin (鄭隆賓), is more angry about the accusation that the practice violates human rights.

  "Everyone has the right to decide whether to donate their organs, including death row inmates. As doctors, as long as the organs they donate are suitable, we will not refuse their offers," he said.

  "Many death row prisoners wish to atone for their crimes by donating their organs. We should encourage them and help them. Why refuse their donation?" he asked.

  "What other countries do is not our concern. As doctors in Taiwan, we are obliged to save patients' lives and help organ donors to accomplish their wishes."

  The justice ministry official apparently agrees with Chu and Jeng, though he said he was still undecided about whether, and if so how, to amend the regulation.

  "No prisoner would be forced to surrender his organs here. The Execution Regulation requires a more strict procedure for the consent of death row prisoners than that which applies to non-prisoner donors," he said.

  The regulation requires not only the written agreement of the prisoner but also that of a spouse or at least one close relative.

  He also noted that decisions to donate involved the exercise of free will by both the executed individual and his family, and that such exercise of free will should not be called "violations of human rights."

  "If we're talking about human rights, death row inmates also have the right to express their will. The right of patients needing organ transplants to continue their lives must also not be neglected."

  A strong opponent of the current practice, however, is neurologist and superintendent of the private En Chu Kong Hospital (恩主公醫院), Chen Rong-chi (陳榮基).

  "Brain death is very difficult to determine after a shooting in the head," Chen said. "The determination of brain death at the execution ground is careless and perfunctory."

  He said that determination of death was a medical rather than a legal matter. Under the current practice, he said, the prisoner may not have died when the prosecutor announces completion of the execution.

  "You just can't treat someone who has yet to expire as a dead person. Taking out somebody's organs before they are dead is obviously unethical and violates human rights," he said. "It is also wrong to sacrifice one person to save another. We must respect life."

  The scenario Chen warns against actually happened in one shocking incident. On April 15, 1991, a prisoner was declared brain dead at the execution ground and immediately transported to the Veterans General Hospital (榮民總醫院) in Taipei for organ removal. He was found, however, still to have a heartbeat and be able to breathe unaided.

  He was transferred to the hospital's intensive care unit where he stayed for more than 30 hours, until the justice ministry ordered that he be returned to the execution ground to receive one more shot.

  Chen said that it was possible that a prisoner could still feel pain while his organs were being removed, if he were not actually brain dead.

  A Buddhist, Chen said that the soul of the prisoner could not leave him peacefully under such circumstances.

  But Chu rejected the idea. "No one can prove that," he said.

  "In fact, the prisoners are brain dead once they have been shot in the head, just not in terms of the current determination procedure."

  "Usually, when the notion of brain death is applied, the purpose is to save the patient, while, in execution, the purpose is to kill him. It is inappropriate to confuse these two things and apply one standard to them," he argued.

  Jeng agreed. "The point is that the prisoner is supposed to die from the moment his sentence is finalized. It's the judiciary deciding that he must die. His death should not be defined by the usual brain death determination procedure," he said.

  Chen, on the other hand, complained that surgeons are often eager to get organs for transplantation surgery while neurologists, who are responsible for determining brain death, must be more careful. "Because we know how difficult it is," he said.

  Ko Wen-je (柯文哲), director of the Surgical Intensive Care Unit at National Taiwan University Hospital, wants to see a resolution of the issue.

  "Currently, executed prisoners are not subjected to proper brain death determination procedures. But it would be strange to shoot someone in the head deliberately and then wait [16 hours at the execution ground] until he is brain dead," Ko said.

  "The purpose of organ transplants is to save other patients. If you insist that organ removal only be carried out 16 hours after an execution by shooting, you only get damaged organs and do not benefit the patients."

  No Solution

  Ko criticized the government for failing for several years to seek a solution to the problem.

  "Everyone knows that current practice is problematic and involves a legal conflict, but the government just adopts the attitude of an ostrich."

  Asked what he thought about the Human Organ Transplantation Act being amended to exclude executed prisoners from the normal brain death determination procedure, Ko said he did not believe that "the Taiwan government would dare to risk incurring even greater international criticism by doing this," although he also called the opposition of Western countries a "cultural prejudice."

  Both the justice ministry and Jeng said there were no statistics available to show the numbers of patients benefiting from executed prisoners' organs. But Jeng said that the Chang Gung Memorial Hospital last year carried out twelve liver transplants, five of which involved livers from executed prisoners, "which counts for nearly half of the total," he said.
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