We have always known, and to a degree criticised, China for having an organ donation system based on ‘opting out’; people can decide not to donate if they are aware that the government will/may take their organs after their death. Until some time ago most other countries used, as locally, and ‘opting in’ system, whereby people decide whether they wish to donate organs during their life. Locally the relatives of recently deceased may be asked if the organs are viable. This occurs mostly following tragic accidents. Some countries, notably some states in the USA have a ‘mandated choice’ – you must choose whether you are going to be a donor or not at a specified date or milestone – this is usually taken to be when one applies for a driving licence. Of course this decision may then be changed.

But recently many European States are considering the opting in system. Organs remain elusive and scarce and when someone may benefit, once a person is dead, people may say that taking an organ is a small price to pay to save lives. Whilst some would say that once I am dead you can do with my body what you like, others still feel it is a personal question of identity, respect for autonomy, and indeed feelings.

Once we know that China has an opting out system, one then has to consider their taking organs from executed prisoners in this context. Would Europe do the same had it to include an opt-in mechanism? When we consider that during the ongoing discussion the German position also included a statement recommending that those who do not opt in may not be considered eligible to receive an organ if the needed one, then the ethical debate cannot certainly be conducted from a puritan point of view. My mother always used to tell me: “biex tiskongra trid tkun pur”, meaning that none of us are without fault.

But it is worth considering whether in China, the prisoners are considered to be objects of the state or whether they can still benefit from an opt-out system. If not we can have something to say; if yes, one still has to consider whether prisoners are truly free to opt out – even fear of being maltreated can prevent one from doing this.

I am certainly not writing this to put China in bad light. As we saw they were the forerunner of a system which we condemned and which we now seem to want to adopt. But certainly there is a difference still between opting out and taking an organ from an executed individual. Some time ago I wrote about taking organs from dead soldiers and said that even if one is a pacifist, obtaining organs from dead soldiers cannot be considered a bad thing once they themselves opted to do so. We cannot certainly take organs without their consent. But there is a clear difference between soldiers and prisoners. Prisoners are more vulnerable. Their penalty is that their freedom has been removed. We cannot maltreat them or remove their rights as individuals.

But the main question is this: should we consider introducing an opting out system in Europe we would be assuming that people need to know about the system and have the liberty to opt out. Now will the prisoner opt out? Will they feel coerced in any way? Will they have their sentence reduced as an incentive? Certainly for someone whose freedom has been removed, every straw may be grasped. Will donation in prison be higher than the national average? If so then we have a problem verging on discrimination.

Dr Pierre Mallia