The Origins and Networks of Anti-Apartheid Activism in France

De Félice's anti-apartheid activism began several years before the heart transplants. A long time human rights champion and member of the central committee of the Ligue des Droits de l'Homme (LDH), de Félice's human rights activism aimed for universal political participation and status equality.Footnote ²¹ In his early years of practice, he represented Algerians in France, categorizing them as political prisoners, even when French authorities charged them as common criminals.Footnote ²² He considered that decolonization had ushered in neocolonialism, enabling France and other imperial powers to dominate newly independent states economically. He viewed racism and the economic vestiges of colonialism as obstacles to equal rights, and law as the means to overcome them. At the same time, he did not view liberationists, even those who condoned or used violence, as less deserving of rights protections. He shared this view with those confrères who had come of age in the legal aftermath of the French resistance.Footnote ²³ A Protestant social democrat from a wealthy bourgeois lineage, an active member of the ecumenical humanitarian network, Christianisme social (Social Christianity), and having practiced with communist and socialist lawyers, de Félice's address book was filled with contacts from an array of leftist organizations, political parties, church groups, and intellectual networks.Footnote ²⁴

The French Anti-Apartheid Committee first formed in 1962 although it was preceded by the Committee for Justice and Equality in South Africa (founded in 1960), and absorbed into the Liaison Committee against Apartheid (created in 1964).Footnote ²⁵ Drawing on an early postwar form of activism in France, the committee coordinated existing anti-fascist and anticolonial networksFootnote ²⁶ bringing together a diverse array of leftists ranging from Christians to communists. It liaised among the political, religious, labor, humanitarian, antiracist, and student organizations acting to raise French awareness of the situation in southern Africa where the political economy, legal system, and social structure were founded upon white supremacy and upheld by Apartheid law: an ever expanding catalogue of racialized laws that designed a racial classification system to assign rights and privileges to white South Africans while curtailing those of black and colored South Africans, and South Africans of Asian descent. De Félice and Elisabeth Mathiot, member of Christianisme social and wife of Protestant pastor Etienne Mathiot—arrested in late 1957 during the Algerian war for having led an Algerian National Liberation Front (FLN) leader to the Swiss border—worked together in the committee's Secretariat.Footnote ²⁷ As the committee's work grew, de Félice forged a partnership with the United Nations Special Committee Against Apartheid (then called the Special Committee on the Policies of Apartheid of the Government of the Republic of South Africa).Footnote ²⁸ De Félice entered into contact with anti-apartheid activists elsewhere, including John Collins of the Defence and Aid Fund for Southern Africa, Raymond Kunene, the African National Congress (ANC)'s representative to London, and Ewald Katjivena, the South-West African Peoples’ Organization's (SWAPO) representative in Algiers. The committee collaborated closely with Christianisme social as well as with the LDH. De Félice's supporters included a number of his fellow jurists, particularly activist lawyers like himself, many of whom had defended African and Algerian anticolonialists in courtrooms across Africa and France during the 1950s.Footnote ²⁹ The committee mobilized former anti-Vichy resistants who, after the war, became anticolonialists or Third Worldists including the so-called “rebel priests” Robert Davezies and Alexandre Glasberg.Footnote ³⁰

The French Anti-Apartheid Committee called upon a number of associations—such as the Movement against Racism and for Friendship among Peoples (MRAP), the International League against Racism and Antisemitism (LICA), and the Federation of the Students of Black Africa (FEANF)—to join them for specific events even if these groups were not regularly engaged in their activities.Footnote ³¹ It created a common action through meetings and voluminous correspondence with like-minded activists. It pressured United Nations and state authorities to intervene and take action against South Africa. It informed public opinion and organized activities to coincide with ongoing events, using these occasions to disseminate information about the realities of life in South Africa.Footnote ³² For example, throughout 1966, the committee fostered public awareness of the aid the French government gave to the South African government, particularly as a leader in the supply of arms. Appropriately, de Félice's anti-apartheid activism focused on legal issues and mobilized like-minded lawyers. In January 1966, as Abram Fischer, defense lawyer for Nelson Mandela, Walter Sisulu, and other leaders of the ANC during the Rivonia trials, appeared before the Supreme Court of South Africa for his anti-apartheid activism, de Félice organized a delegation of French lawyers to visit the South African embassy in Paris.

On November 9, 1966, the committee organized a press conference featuring France's leading Third Worldist, philosopher Jean-Paul Sartre. Third Worldism brought together a variety of leftist activists of the 1960s, including revolutionary Christians, intellectuals, secularists, political activists, anticolonialists, academics, students, Maoists, and non-conforming socialists and communists.Footnote ³³ Third Worldist objectives were neither always aligned, nor coherent, but generally aimed to end economic exploitation and domination of the Third World by world superpowers. Already in 1956, Sartre used the term “neocolonialism” to predict that the colonial system would survive “decolonization.” He saw neocolonialism at work at the end of the 1960s, not only in territories formerly under French administration, but also in South Africa. Daniel Mayer, LDH president and Reverend John Collins, president of the International Defence and Aid Fund supporting South African political prisoners also spoke at the November press conference.Footnote ³⁴ It was the occasion to publicly denounce apartheid, before more than forty journalists, and to shed light on France's role as supporter and accomplice of apartheid at the United Nations, where it voted against every resolution adopted on the question.Footnote ³⁵ The committee also announced its intention to host an international conference of European anti-apartheid movements to develop and coordinate the struggle against apartheid in Europe in Paris in May 1967.Footnote ³⁶

On May 6 and 7, 1967, the European anti-apartheid movements convened in Paris for the International Conference hosted by the French Anti-Apartheid Committee. Sartre was attending the Russell Tribunal in Stockholm, but he sent a message denouncing South Africa as a country that “legally declares the inequality of its inhabitants according to the color of their skin and openly organises, in every sphere of life, the domination of the immense majority by a minority, the former's exploitation by the latter.”Footnote ³⁷

Fleshing out Sartre's remarks, de Félice subjected apartheid law to a human rights inflected legal analysis. He had prepared a legal brief reviewing apartheid law titled “Recent Legal Aspects of Apartheid.” In it, he traced the evolution of legalized racism since the National Party (NP) took control of government in 1948.Footnote ³⁸ The brief analyzed the laws limiting African mobility, segregating educational systems and cities, prohibiting strikes, criminalizing inter-racial relationships, and authorizing the removal of Africans from any town or white-owned farm.Footnote ³⁹ De Félice concluded that one could only note “the grievous and direct affront to being human.” De Félice's speech at the International Conference on “the South Africa of today” was based upon this legal analysis. A long-time defender of political prisoners, de Félice highlighted a legal structure that by segregating and curtailing freedom of movement, thought, assembly, and social activity caused direct and painful injury to human beings.

The committee's activity was not extraordinary. It conformed to the French left's mode of activism of the time: a blend of heterodox Marxism, Third Worldism, and revolutionary humanitarianism. The cultivation of transnational ties, via colonial populations, pan-Black solidarity activists, and cause lawyers connecting across imperial boundaries, was not new either.Footnote ⁴⁰ At the time of the medical breakthrough from South Africa, the French committee was uniquely prepared to apply de Félice's legal critique of the apartheid state to Barnard's world renowned success. The result was to disrupt the news of Barnard's medical exploits by introducing the question of whether he might have accomplished them anywhere except South Africa where the law afforded him—as it did to any white person—the power of life and death over non-whites.Footnote ⁴¹

Positioning a World-Famous Afrikaner Heart Surgeon

Christiaan Barnard was born to an Afrikaner family in Cape Province and grew up in the village of Karoo.Footnote ⁴² He was one of four sons of a Dutch Reformed Church pastor. In the late 1950s, he finished his medical training in the United States with a residency under the supervision of surgeon C. Walton Lillehei at the University of Minnesota.

The South African government was well aware of the attention that Barnard's medical first drew. Prime Minister Balthazar John Vorster, of the NP—the official party of the apartheid regime—referred to Barnard as “the best ambassador that South Africa has ever had.”Footnote ⁴³ The government subsidized their star surgeon's worldwide victory tour throughout 1968, and continued to finance his trips abroad until the end of the 1970s. Barnard, whom the Globe and Mail described as an “enlightened” sympathizer with the government in January 1968,Footnote ⁴⁴ did not shy away from his ambassadorial role. On the contrary, he used the trips and fanfare to enhance his professional profile; after all, he was the winner of the race to transplant a heart.Footnote ⁴⁵

In the United States, Barnard appeared on the cover of Time Magazine on December 15, 1967, and was a guest on the television broadcast Face of the Nation on Christmas Eve. President Lyndon B. Johnson hosted the doctor at his Texas ranch on December 29.Footnote ⁴⁶ Barnard's position on apartheid seeps through his interviews, at home and abroad. At first, in late 1967 and early 1968, Barnard seemed indifferent about apartheid, and journalists’ insistent focus on it annoyed him. However, as the questions persisted, his position evolved.Footnote ⁴⁷ On October 31, 1969, Barnard publicly declared his support for the United Party, an official opposition party at a time when the ANC, the Pan-African Congress (PAC) and the South African Communist Party had long been banned. The left wing of the United Party broke away to found the Progressive Party in 1959. In 1969, Barnard's claim to be a United Party oppositionist seems to have represented his attempt to carefully distance himself from the ruling NP. The United Party had disintegrated entirely by 1977.

Barnard's “opposition,” then was not to apartheid per se, but rather to the extremes of the NP's implementation of it, and seems to have been motivated primarily by his desire to dodge critical questions at his press conference. Certainly, Barnard supported neither the participation of non-whites in South Africa's political processes, nor that they should have a role in South African governance. Rather, he denounced the politics of the “extreme right” as a threat to “white civilization,” equivalent to communism. The only way to ensure a future “for you, for me, or for our children,” he told a group of Afrikaner businessmen, is to adopt a progressive perspective.Footnote ⁴⁸ He condemned racial segregation in those areas where he deemed it unjustified or unimportant; at the opera, for example, as well as in the operating room where he considered that the “heart is only a muscle.”Footnote ⁴⁹ Yet he remained staunchly opposed to the idea of a black majority or multiracial government for South Africa.Footnote ⁵⁰

Abroad, in the international media spotlight where activist groups like the French Anti-Apartheid Committee worked to shatter his public image, Barnard declared ambiguously in 1969 that apartheid was not the answer to “the problem” for which South Africans sought an answer, leaving both problems and answers unspecified.Footnote ⁵¹ Ten years later, he proclaimed himself to be “strongly opposed” to apartheid but expressed his conviction that the international community's attitude to South Africa was “unjust” because it ignored the progress that the country had made in racial relations. He put forward the idea of a two-state solution for South Africa, one “for blacks” and the other, “for whites.”Footnote ⁵² In 1997, soon after the fall of apartheid, Barnard stated that the greatest regret of his career was that “I worked under the cloud of apartheid. … It hampered me a tremendous amount, more than people think. … There's no doubt that the white man also suffered as a result of apartheid.”Footnote ⁵³ Barnard commented that had it not been for his race and nationality, he would have surely been awarded a Nobel Prize. What Barnard seemingly regretted most about apartheid was that his government's policies of racial segregation tarnished the self-image he sought to cultivate abroad. Did he sign up for the United Party in 1969 in order to dupe foreign correspondents into thinking that he fought actively against apartheid? In France, de Félice drew on legal strategies to tarnish Barnard's projected image.

The French Anti-Apartheid Committee's Disruptive Strategy

Harnessing the global reach of Barnard's fame, the focused attention of the public, and the South African government's awareness of an opportunity to polish its image in the eye of the “modern nations” to which it aspired to belong, the French Anti-Apartheid Committee sought to persuade the public that without apartheid, Barnard would not have won the heart transplant race. De Félice trained Barnard's media spotlight on apartheid law, deploying a political strategy of legal rupture, a sort of legal defense that questioned the very legitimacy of a judicial procedure invoking the law.Footnote ⁵⁴ De Félice condemned the Apartheid state for legislating that

Although the question of prisoner organs fueled the campaign du jour, de Félice remained preoccupied with the racialized structural imbalance that apartheid maintained. He wrote, “We must remember that the real foundation of apartheid is the necessity, for partisans of white supremacy, of economic exploitation of Africans, to preserve and increase their privileges and to offer enticing profits to foreign investors.”Footnote ⁵⁶ In the category of social rights, de Félice highlighted the United Nations and United Nations Educational, Scientific and Cultural Organization (UNESCO) reports on disparities in access to health care, where infant mortality in rural zones among Africans reached 400 per 1000 and tuberculosis, rickets, and malnutrition ravaged non-white communities.Footnote ⁵⁷

When Barnard transplanted the heart of a young white South African woman Denise Darvall into the chest of Louis Washkansky—a diabetic Cape Town grocer who had immigrated to South Africa from Lithuania in 1922—the French Anti-Apartheid Committee was poised for action. In the days that followed, Mathiot prepared and circulated a statement that emphasized the “new and serious problems” that organ transplantation posed to human rights. Mathiot sent the statement to Joë Nordmann, President of the International Association of Democratic Lawyers, to Secours populaire,Footnote ⁵⁸ to Secours catholique, and to the Confederation of French Medical Unions. De Félice forwarded the statement to the press including leading French newspapers Le Monde, Le Figaro, the Communist L'Humanité, and the Christian left's Combat. Mathiot asked him to send it to other organizations that might find the issue concerning; namely, the LDH, MRAP, and LICA.

The statement's primary focus was the problem of organ harvesting in countries where “political prisoners number in the thousands, and people are arrested and detained arbitrarily and judged without their right to fair trial being guaranteed, capital executions are frequent” and where the law has been “many times denounced and condemned by the highest international authorities.”Footnote ⁵⁹ Washkansky died 18 days after the operation, but in a televised interview in Washington on December 24, Barnard announced his intent to make a second attempt, adding that more than fifteen non-South Africans had volunteered to undergo a heart transplant. The committee found alarming the doctor's declaration that he had “enough donors” and the only problem might be a lack of patients matching them.Footnote ⁶⁰

As the anti-apartheid movement painted the South African heart transplants as nefarious, South African medical professionals countered. Doctors, lawyers, and politicians professionalized the questions that anti-apartheid activists raised, excising their critical politics, and discussing instead new possible medico-legal definitions of death and innovative ways to standardize organ transplantation in ways most beneficial to transplant surgeons and the recipients they selected.

As Barnard talked up his surgical exploits abroad, in South Africa, forensic pathologists began to publish medical studies that both highlighted and obscured the circumstances in which he had performed them, and took care to argue that he did so legally. The first appeared in the December 30, 1967 South African Medical Journal, when Dr. L.S. Smith, the Senior Government Pathologist of the State Pathology Laboratory in Cape Town published the results of an official postmortem of Denise Darvall. The article, titled “The Acquisition of Human Tissue for Transplantation Purposes: Legal Requirements in South Africa,” made clear, among other things, that the act distinguished “between the removal of tissue (‘any human tissue flesh, organ, bone or body fluid’) from bodies of deceased persons, and that of the removal from living persons.”Footnote ⁶¹ Smith stipulated that the cause of Darvall's death was “multiple injuries.”Footnote ⁶² When referencing the Post Mortem Examinations and Removal of Human Tissues Act (30 of 1952 as amended by Act 49 of 1961), Smith sidestepped the time of death, as well as the manner in which and by whom Darvall's death was discerned. He wrote “Only those sections of this Act which have bearing upon tissue-transplant manipulation will be considered in this communication. The contentious aspects of ‘consent’, and ‘death’ could be discussed profitably on another occasion.”Footnote ⁶³ Anti-apartheid activists like de Félice and Mathiot later amplified questions of consent and death, using them to cast a shadow over Barnard's triumphant narrative, and to frame his hubris as unbridled in a country where whites were bound by neither law nor ethics.

For his second transplant on January 2, 1968, Barnard transplanted a heart from colored donor Clive Haupt into a white South African dentist, Philip Blaiberg. Continuing to alert public opinion to the potential human rights violations involved in South African organ harvesting, the same day as the operation, Mathiot and de Félice circulated a statement calling for an international law to prohibit harvesting a heart from any person deprived of liberty, condemned to death, or facing the death penalty, even if the donor had “volunteered.”Footnote ⁶⁴ Mathiot, not a lawyer herself, was the one who proposed the law. It was likely the first time a law protecting prisoners from organ donation was conceived. When first introducing her idea to de Félice, she wrote, “It's hard to be ahead of the curve … often it can seem like going off the rails. But we must take this risk.”Footnote ⁶⁵ Motivating the public to act against apartheid was a primary objective of the committee, and Mathiot feared that proposing an international law that many might find far-fetched might undermine the committee's credibility, and hence, its ability to sensitize and persuade. However, rupture strategies, despite the risk of being polarizing then, as now, disrupt assumed norms by shocking or otherwise bringing people to come to new realizations. Both Mathiot and de Félice had gained experience with rupture strategies during the Algerian war. Their choice to use them here constituted a kind of revolutionary, anticolonial human rights campaign, questioning the legitimacy of an international law that did not prohibit organ harvesting from prisoners, and articulating it with the particularity of South African apartheid law.

In the week that followed, de Félice penned a one-page essay entitled, “Thank You, Doctor, For Accepting this Heart,” for the ecumenical periodical Témoignage chrétien.Footnote ⁶⁶ He wrote several drafts by hand, selecting words and phrases from press coverage of Barnard's transplants to create a powerful polemic amplifying the racialized legal, moral context in which they took place.Footnote ⁶⁷ In the text, de Félice presented South Africa as “the land of apartheid, the land of racist law…where one can only react as racist or as a victim of racism.” He cited the words of Haupt's mother: “‘At the hospital, everyone was very nice to us. They treated Dot (Clive Haupt's widow) and I as though we were White.’” As further evidence of fixed, internalized racism, de Félice offered the question asked of Dr. Blaiberg: “‘Do you find it inconvenient that the heart of a coloured man is replacing your own?’” And then, to illustrate a tacit acceptance of racialized status quo, de Félice quoted the words of Haupt's family, as a sign of subjugation expressed as gratitude to white masters: “‘Thank you, doctor, for fighting against apartheid by having accepted this heart.’ All of this is odious and unacceptable,” showing how “racism permeates the air, leaving its mark everywhere,” insisted the lawyer.

De Félice warned of the danger of becoming complicit in apartheid by lauding Dr. Barnard's exploits: “In reality we are in the midst of a vast political publicity stunt, orchestrated by a government seeking to appear humane and progressive in the eyes of the world that condemns it.” He then turned his focus on Barnard himself, dismissing any notion that the surgeon was somehow an unwilling prisoner of the South African legal regime: “If he wants to save man, that is all mankind, he should go into exile, leaving … the land of Apartheid; or else continue his experiments with the blessing, the support, and the publicity granted him by a government too keen to appear great and generous in international public opinion…” The implication was that the South African government might well look the other way when it came to ethical questions related to Barnard's practice, and that this was perhaps the surgeon's reason for staying put.Footnote ⁶⁸

His prosecution finished, de Félice connected his analysis of apartheid law with the reality that “men of colour [in South Africa] have neither the right to assembly, nor the right to strike, nor the right to freedom of expression. They cannot be free men. By virtue of inequitable laws (laws on natives, Bantu organization, settlement zones, immorality, reservations and separate development, prohibition of mixed race marriages, etc), people are constantly arrested, condemned. Thousands of prisoners are there, available, weakened, a number of them on death row… So we must sound the alarm…” De Félice concluded his polemic by universalizing organ transplants as a human rights issue, announcing the international law that the committee supported: “We must ensure that no prisoners, even voluntarily, be allowed to give their hearts, their kidneys, or any other organ, because it is easy to imagine the pressures they could face to do so.”Footnote ⁶⁹

De Félice's polemic offered a blueprint for raising public awareness of the moral perils and legal pitfalls of cardiac transplants in South Africa or anywhere that people could be indefinitely detained on a whim. When the committee learned of Barnard's plan to deliver a keynote speech in Paris before the Society of Thoracic and Cardiovascular Surgery on February 3,Footnote ⁷⁰ Mathiot met with Dr. Pierre Vernant, Cardiology Clinic Assistant at Broussais Hospital, to mobilize doctors to their cause.Footnote ⁷¹ In anticipation of Barnard's address, de Félice and Mathiot suggested that Vernant ask disruptive questions that the lawyer had prepared, including:

1. 1. If South Africa's death row prisoners were to accept it, do you intend to harvest hearts from them and if so in what conditions?

2. 2. If so, don't you think that apartheid law and the reactions it sparks (demonstrations, terrorism, sabotage) makes you an executioner?

The questions invited Barnard to testify against his government, something that the surgeon took great care not to do, given that his publicity tours were funded by the South African state at the time.Footnote ⁷² When the opportunity for a question came, Vernant left aside the explicitly political questions that the committee had suggested. Instead, he asked about the criteria for the death of the donor, turning the focus on legal and ethical ambiguities at the center of cardiac transplants and illustrating why strict international legislation of the matter was required. His questions probed the uncharted gray zone of “consent” and “death” that South African professionals, like Smith, occluded from discussion.

A week after Barnard's keynote, Vernant submitted a report to the French Anti-Apartheid Committee alleging that when performing the operations, Barnard had violated the Removal of the Human Tissues Act of South Africa (Act 49, 1961)Footnote ⁷³ by himself declaring the death of the donor, Denise Darvall, apparently after waiting for her heart to stop.Footnote ⁷⁴ During the second transplant, Clive Haupt, suffering from a brain hemorrhage, was under the care of admitting physician Dr. Raymond Hoffenberg who therefore had the responsibility of declaring death.Footnote ⁷⁵ Despite pressure from the transplant team, Hoffenberg refused to do so. When he returned to the unit the next morning, in his estimation, Haupt was no longer alive. But Hoffenberg did not sign the death certificate and, when Margaret Lock interviewed him years later, could not recall it being signed. Vernant questioned the criteria for determining Haupt's death. Nowhere in the world at the time was cerebral death the norm. Nor did it appear in legal statutes. Vernant's report concluded by underscoring the necessity for “international legislation that stipulates the criteria for definitively and absolutely determining cerebral death.”Footnote ⁷⁶ The committee diffused the concerns and allegations raised in Vernant's report, through activist networks, by sending it to Le Monde, and by preparing its submission to the World Health Organization and the United Nations at the upcoming International Council of Organizations and Medical Sciences to be held in Geneva on May 13–14, 1968.Footnote ⁷⁷

Although working from afar and with limited information, the activism of the French Anti-Apartheid Committee's leaders depended upon their extensive understanding of apartheid society. De Félice and Mathiot seemed to anticipate how South African doctors, medical researchers, and legislators would appeal to the authority of medical and forensic science and lawmaking to legitimize Barnard's surgical accomplishments.

Racialized Innovation in Forensic Medicine and Legislation

As though tuned in to the anti-apartheid critique that began to surface during Barnard's events abroad, a few white South African professional men sought to restructure South African law and medical practice to place Barnard above scrutiny. Skirting the issues of consent and death was clearly not enough to offset allegations of legal and ethical impropriety that tarnished the government's projected image of a modern South Africa. To counter anti-apartheid critiques, South Africans had to pioneer in two related professional spheres: forensic medicine and legislation. Hillel Abbe Shapiro, South Africa's leading forensic pathologist, renowned medical researcher, former lecturer in medical jurisprudence at Cape Town University, and editor of both the South African Medical Journal and the Journal of Forensic Medicine, guided South African law and medicine toward redefining death in such a way as to vindicate Barnard's specific actions. His focused publications and the medical conferences that he helped to organize over the next 2 years showed his commitment to making South Africa a model of how to legally manage the medical exigencies of organ transplantation.

Shapiro began by writing an editorial for the January–March 1968 issue of the Journal of Forensic Medicine entitled “Heart Grafting in Man.” In it he stated that although not all countries had “the statutory machinery to permit such surgical procedures … the legal provisions which made organ removal and grafting operations possible in South Africa” were of worldwide importance.Footnote ⁷⁸ Yet he questioned the “adequacy of our criteria of the moment of death,” emphasizing that “death is a legal and not a biological concept,” to be “determined by the decision of a registered medical practitioner who, in practice, relies on the persistent failure of the action of the heart and the breathing of the patient.” He suggested that “a cerebral ‘death’ would justify a decision to switch off a respirator.”Footnote ⁷⁹ Shapiro took care to explain that in the first heart transplant, Barnard had “insisted on electrocardiographic evidence of a ‘dead’ heart in a person who was cerebrally ‘dead’ as well.” Shapiro concluded that Barnard had “fulfilled all the ethical, legal and medical criteria that could reasonably have been demanded of him” and added that the same considerations had applied to the second heart transplant.Footnote ⁸⁰

Shapiro and Barnard actively cultivated South Africa's role as innovator in medical law and practice, seeking, in effect, to increase the viability of transplant organs by pushing for acceptance of new norms defining death. In July 1968, financially supported by the Cape Provincial Administration and the University of Cape Town, they hosted an international symposium on human heart transplantation that took place in Cape Town.Footnote ⁸¹ The symposium drew sixteen surgeons, from South Africa, Argentina, Chile, Brazil, England, France, India, Canada, and the United States as the main participants. With the exception of Professor Praffula Kumar Sen of India, all were white men. All had attempted heart transplants, twenty-five of them altogether. Taking place on July 13, 15, and 16—a Saturday, followed by Monday and Tuesday—the symposium began with a day-long discussion of the selection and preparation of the recipient and the donor. On Monday, the surgeons collaboratively examined and debated surgical techniques, postoperative care, rejection, tissue typing, postoperative complications and how to mitigate them, rejection, psychological stability of recipients, and pathological findings in the deceased. The convening surgeons brought X-rays and electrocardiograms (ECGs), as well as records of postoperative doses of prednisone and antibiotics. The final day dealt with the future, and reiterated consensuses reached and conclusions drawn during the 3-day discussion.

The parts of the discussion most revealing of the ways that race, privilege, and social status weighed heavily on the heart transplants, however, were those pertaining to the availability and selection of donors, the definition of death, who was qualified to determine when it occurred, and how to protect transplant surgeons from negative press, lawsuits, and public critique. In these areas, politics and race leaked through the professional façade, as the surgeons gathered in Cape Town claimed authority over the ethical, legal, and medical issues that the discussion raised.

Barnard's views aligned with the leading American heart transplant surgeon, Denton Cooley, who practiced in Texas, a racially segregated state that, still in 1968, upheld white supremacy in statewide jurisprudence. Not surprisingly, the link between Groote Schuur and Baylor St. Luke's Medical Center was channeled through both advanced heart transplant programs and white affinity. Marius Barnard, Christiaan's lesser- known brother, in residency at Denton Cooley's heart program at St. Luke's, in Houston, Texas, recounted being stopped for speeding near New Orleans. The driver was arrested. Marius writes: “We were taken to the local prison, where he was placed in jail. But, being in the Deep South, when they discovered I was from South Africa I was treated like royalty and given food and Coca Cola.”Footnote ⁸² Cooley and Barnard both benefited from exceptional financial resources as well as support of white leadership—medical and political. They were well positioned to harvest the privilege that enabled them to succeed, and to bestow it upon the cardiac patients who solicited their expertise, often from far away.

Viewed through a human rights framework of the “rights-less” as potentially unwilling donors, Cooley and Barnard's exchanges regarding donor selection reveal a casual assumption of white privilege over black prisoners on death row. Although donor race was not explicitly mentioned, it figured in the surgeons’ banter about prisoners as donors and capital punishment. During the symposium, Cooley insisted that “there is another source of donors which could conceivably be tapped,” adding, “perhaps we in our clinic would have preceded you by several years if we had the courage to ask for such hearts.” He continued: “This is in the States where capital punishment is permitted. In Texas capital punishment is performed by electrocution. Why would it not be possible to utilise this source of normal young donors for cardiac transplantation? We use prisoners for other purposes on a voluntary basis, and if execution victims accepted this on a voluntary basis, why not use them for donors?”Footnote ⁸³ Barnard blithely replied, “If I could use that sort of donor, we would catch up with you in one week.” The chair of the session, Dr. Velva Schrire, who was one of Barnard's closest research collaborators and Director of the Cardiac Clinic in Cape Town, remarked ambiguously: “I think this is not objectionable and I think it would not represent a great source of donors. Even Texas eventually will come to the point of view where you don't have to kill them. It doesn't represent a great number, and I doubt whether we execute five people in a year.”Footnote ⁸⁴

Schrire's suggestion that rates of capital punishment in Texas were higher than in South Africa, where, he alleged, few were executed is curiously disingenuous, suggesting that he did not view non-white prisoners as potential heart donors, and in fact, did not count them at all. The actual numbers of South African executions were 97 in 1967, 95 of whom were “coloured” or “Bantu,” and 119 in 1968, 116 of whom were “colored” or “Bantu.”Footnote ⁸⁵ The exchange in the formal setting of a symposium panel revealed the racialization that de Félice had surmised “permeates the air leaving its mark everywhere, where one can only react as racist or as a victim of racism.” In this conversation, capital punishment—a mechanism of state punishment that upheld white dominanceFootnote ⁸⁶—was a proxy for race. In both Texas and South Africa, a disproportionately high execution rate of black prisoners had been historically normalized, although in 1968 the rate of black executions was reaching a high-water mark in South Africa, even as it had slowed to a near stop in Texas.

From 1924—when capital punishment became the purview of the state, rather than the counties—to 1968, Texas executed nearly twice as many blacks (269) as whites (146), but the state had held no executions since 1964.Footnote ⁸⁷ In South Africa, capital punishment had steadily increased as the number of capital crimes rose after the NP came to power in 1948, making the death penalty “a tool of State repression.”Footnote ⁸⁸ Capital punishment was not politically or racially neutral. It was used as a component of the state policy of racial domination: apartheid.Footnote ⁸⁹ In 1958, the South African government decreed robbery, attempted robbery, and breaking and entering as crimes punishable by death.Footnote ⁹⁰ After the Sharpeville massacre and the banning of the ANC and the PAC, South Africa defined “both violent and non-violent political acts as capital crimes” by categorizing “sabotage” as such in 1962.Footnote ⁹¹ In 1963, it added “undergoing training or obtaining information that could further an object of communism” and “advocating abroad economic or social change in South Africa by violent means through the aid of a foreign government or institution”Footnote ⁹² to the list of crimes punishable by death. In 1967, the year of Barnard's first heart transplant, the government decreed kidnapping as well as “terrorism,” broadly defined, capital crimes.Footnote ⁹³

From 1911 to 1968, 2,323 people were executed in South Africa, more than half of them since 1953. Only eighty-five of those put to death were white.Footnote ⁹⁴ Blacks outnumbered whites by approximately five to oneFootnote ⁹⁵ at the start of that period, and whites comprised only about one in ten toward its end. The government further politicized capital punishment in the mid-1960s when executing some sixty members of the PAC.Footnote ⁹⁶ Partial statistics (omitting 1969) indicate that more than 722 persons were executed in the 1960s.Footnote ⁹⁷ From the 1960s until the end of apartheid, South Africa was among the leading executing countries in the world.Footnote ⁹⁸

South African whites viewed the death penalty favorably. In the 1960s, the state's use of capital punishment was widely known and accepted, even among elite student populations, including those at the University of Cape Town. A study of the attitudes of South African elite toward capital punishment published in The British Journal of Criminology in 1967 found that a majority of Afrikaans-speaking university students viewed the death penalty as “indispensable to society, not only for premeditated murder, but also for treason, sexual assault, and even for murders committed by insane persons”Footnote ⁹⁹ and that murderers’ confessions sufficed as a reason for a death sentence.Footnote ¹⁰⁰

Against the prominence of capital punishment in South Africa, it is apparent that Schrire's dismissal of Cooley's suggestion that death row prisoners be tapped as a source of donors revealed his awareness of the moral and ethical questions being raised around Barnard's achievements… as well as his desire to keep them concealed from view—or greater discussion—during the symposium. In 1951, Schrire founded a cardiac clinic at Groote Schuur, to provide consultations and ECG service to heart patients. It was the first cardiology unit in South Africa and became the cornerstone of cardiology research in the country. Schrire was invested, like Barnard, in promoting the image of cardiac innovation in South Africa. Perhaps he was aware of the international campaign to draft an international law prohibiting organ harvesting from prisoners. He had certainly heard the implications that South African heart surgeons were not bound by the same ethics and legal norms as their Western counterparts.

In contrast, Cooley's comment, directing a rivalrous barb at Barnard, and Barnard's offhand rejoinder, delivered as the kind of joke that carries a truth, are more revealing of the racial subtext permeating heart transplant dynamics in both the United States and South Africa. Although professional competitors bound by mutual respect, they shared a white supremacist camaraderie encoded in what—at its surface—sounded like a professional discussion among ethically minded doctors. Revealing his own support for the death penalty during the brief discussion of the executed as donors, Cooley lamented a recent Supreme Court ruling that he claimed nearly abolished capital punishment in the United States by barring “certain individuals who have opinions regarding capital punishment to do jury duty in murder trials.”Footnote ¹⁰¹ In light of his supposition that the Supreme Court decision would end executions in the United States, it is likely that Cooley did Barnard the favor of posing a question that was actually Barnard's own.

Beyond South Africa, the French Anti-Apartheid Committee curated the testimony of medical experts and gathered information to call into question the norms around heart transplants and cerebral death that Cape Town surgeons and experts were attempting to establish. In January, during his European tour, Barnard had broached the topic of harvesting hearts from death row prisoners in an interview given to Paris-Match. Cavalierly, he stated: “When it comes to the execution of those condemned to death, do us the honour of believing that we will never be executioners… But why not execute the condemned in sterile conditions? We will have to find hearts, after all…”Footnote ¹⁰² A few days later, de Félice had prepared the questions to guide Vernant's intervention at the Thoracic Conference, which included: “Don't you think apartheid law … makes of you an executioner?” Without mentioning South Africa, Vernant's report asked readers to reckon with the potential afforded by the country's particular social, political, and legal terrain: “Imagine a country where racial segregation reaches such a degree that an ‘inferior’ race is sacrificed for the benefit of a ‘superior’ race. We can imagine how easily the donor could be determined to be dead, and that death sentences could be pronounced to produce donors.” Everything must be done to prevent such eventualities, Vernant wrote: “It must be formally prohibited to use those condemned to death as donors… We must be vigilant that [heart transplantation] does not become, in certain countries and under certain regimes, a weapon of death.”Footnote ¹⁰³

Vernant's report echoed concerns that Professor Werner Forssmann, German winner of the Nobel Prize for having developed cardiac catheterisation and former Nazi, published on January 4, 1968, 2 days after Barnard's second transplant, in Frankfurter Allgemeine Zeitung, a piece that the Anti-Apartheid Committee likely shared with the medical experts whom they approached (a French translation of the relevant portions appears in the committee's archives). Forssman knew firsthand the dangers of practicing medicine in situations where some human beings wielded the power of life and death over others.Footnote ¹⁰⁴ It troubled him that transplanting the heart, a unique organ, required the donor's death. Forssmann recalled the death sentence meted out to Professor Karl Gebhardt at Nuremberg on August 20,1947, “for using bones and joints of prisoners in concentration camps without their consent. His execution was justice.” He opined that “political instability” made cardiac transplantation a somber affair because in such circumstances, “[C]alls will be made to restore the death penalty. Atonement will be distorted to link it to organ donation. Executions will no longer be carried out by the executioner, but in sterile clinics, by the surgeon and anaesthetist. Prisons will become the preparatory institutions for transplants… they will serve as organ banks… In this case, doctors will be definitively reduced to executioners.”Footnote ¹⁰⁵ For Forssmann, South African heart transplants were equivalent to Nazi medical practices. Did his questions anticipate Barnard's vision for the future of heart transplants in South Africa?

The heart surgeons gathered at the closed symposium in Cape Town discussed and proposed solutions to every societal obstacle limiting their endeavor: to successfully transplant human hearts into chronically ill and dying cardiac patients. Collaborative discussion generated ideas about ways to meet challenges. Neither philosophers nor judges were qualified to determine the moment of death, which was, after all, an abstract concept, and moreover, a series of corporal failures rather than a singular biological event, as people had previously supposed.Footnote ¹⁰⁶ In order to achieve viable heart transplants, cerebral death had to be declared when irreversible damage to the brain indicated that, without mechanical assistance, a patient's organs would fail.Footnote ¹⁰⁷ The heart could then be harvested while it was still contracting, thus increasing likelihood of success. These medical decisions—too complex to be widely understood, too controversial to be socially accepted—had to be protected by law.Footnote ¹⁰⁸ Laws, too, must exist to prevent donors’ families from changing their minds, thus protecting surgeons and hospitals from lawsuits of the sort brought by the family of Bruce Tucker, a black American whose heart Dr. Richard R. Lower transplanted into the body of Joseph Klett at the Medical College of Virginia.Footnote ¹⁰⁹ There must be a point of no return after which organs in unclaimed bodies might, under legal protection, be made available for transplant. Unpredictable press coverage, as damaging as it was laudatory, should be mitigated by insisting upon the anonymity of the donor.Footnote ¹¹⁰

The Cape Town symposium for heart surgeons was not the first gathering to debate challenges and generate solutions, but it was the only such conference attended solely by cardiac specialists. It assigned heart surgeons a starring role in defining parameters that elsewhere were discussed across various professional disciplines, including medicine, law, ethics, and religion, often in public gatherings. In the United States, France, and Great Britain, doctors, jurists, and religious and political leaders gathered with the purpose of standardizing donorship, organ harvesting, and death certification procedures. In January 1968 in Boston, Henry Beecher, an anesthesiologist, convened ten physicians, a lawyer, a theologian, and a historian to form the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Death, beginning in January 1968.Footnote ¹¹¹ After meeting for 6 months, the committee published a report in the Journal of the American Medical Association that defined “irreversible coma as a new criterion for death.”Footnote ¹¹² Concurrently, the Uniform Anatomical Gift Act (UAGA) was drafted by the Commissioners on Uniform State Laws to standardize state organ donorship and transplantation statutes and approved on July 30, 1968.Footnote ¹¹³ The UAGA omitted a definition of death, specifying only that “the time of death shall be determined by a physician who attends the donor at his death, or, if none, the physician who certifies the death” and who was not to participate “in the procedures for removing or transplanting a part.”Footnote ¹¹⁴ At the same time, Kansas led the way to a statutory definition of death, “which dealt with man as a human, not as a physiologic unit,” and thus establishing that, in legal terms, “when the brain is dead, the man is dead.”Footnote ¹¹⁵

In France, similar formal, inter-professional discussions, bringing together clergy, intellectuals, politicians, jurists, and doctors, unfolded around the ethical legislation of death to allow for heart transplantation. In Paris on February 19, 1968, the Academy of Moral and Political Sciences—in the presence of Rabbi Kaplan, leader of the Jewish faith in France, and Pastor Boegner, a leading Protestant—heard Father Michel Riquet deliver a talk on Heart Transplants and the Human Person.Footnote ¹¹⁶ The Academy concluded that, although the responsibility for defining death fell on doctors, heart transplants could save the lives of patients who would otherwise die. The event laid the groundwork for an ethical and religious consensus supporting cardiac transplants. France's political leaders carried the intellectual and moral consensus forward. On April 17, 1968 Minister of Social Affairs, Jean-Marcel Jeanneney, presented to the Council of Ministers an exposé on “governmental intentions, moral and medical reflections, and ethical and regulatory specifications” relating to heart transplants. On April 24, 1968, France issued a ministerial circular allowing organs to be harvested in operating rooms, a de facto, although not legislated, acceptance of cerebral death.Footnote ¹¹⁷ Three days after the circular's issuance, French surgeon Christian Cabrol achieved the first cardiac transplant in Europe, at the Hôpital de la Pitié in Paris. The donor's identity was concealed, but was described in the papers as a “decedent with a beating heart.” The circular preceded Law 76-1181 Relating to Organ Harvesting by 8 years.Footnote ¹¹⁸

The South African path to legislation was narrower and bore the imprint of the resolutions reached at the Cape Town heart transplantation symposium through a closed-door discussion to which only physicians had access. They reinforced one another's expertise, agreeing that doctors alone were to wield the power of life and death. The new legal template came to fruition in the South African Anatomical Donations and Post-Mortem Examinations Bill to regulate organ transplantation first read in Parliament on February 6, 1969, barely 6 months after the symposium. In a piece titled “Organ Transplantation and the Law” appearing in the Journal of Forensic Medicine , South Africa's leading forensic pathologist, H. A. Shapiro wrote: “This draft legislation … will undoubtedly serve as a useful model and guide for other countries in which organ transplantation is carried out.”Footnote ¹¹⁹

Rather than seeking to legislate cerebral death, as the Kansas statute did, the South African bill specified the conditions in which organs could be harvested from a “living person.”Footnote ¹²⁰ UAGA specified the donee as “any hospital, surgeon, or physician;” … “any accredited medical or dental school, college or university;” any licensed, accredited “bank or storage facility” approved under state law “for storage of human bodies or parts thereof;” or “any specified individual for therapy or transplantation needed by him.”Footnote ¹²¹ Eschewing any such specificity, the South African bill specified the donee as “authorised institution,” without defining the institution's purpose or requiring that it be licensed, stipulating only that: “No removal of any tissue from the body of a living person for use in the body of another living person shall take place UNLESS such removal is authorised in writing by the medical officer in charge of the hospital or authorised institution in which such removal takes place.” Unlike UAGA, which required that willingness to be an organ donor be made in writing, whether in a will, or on a card signed by the donor in the presence of two witnesses, in the South African bill, oral consent to donate was accepted, provided such consent was made in the presence of two persons over the age of 18. Significantly, the bill prohibited the publication of the identity of either the donor or the recipient. The bill reflected the heart surgeons’ discussion during the symposium. As drafted, it aspired to make legal South African surgeons’ use of prisoners’ organs in transplantation, while shielding them from public inquiry by imposing donor anonymity.

As the bill was being debated, Shapiro reviewed the published record of the Cape Town Symposium in his Journal of Forensic Medicine. He related the debate as having “centred on the propriety (moral and legal) of removing a heart from a donor while it was still beating. This unorthodox view found some support among the heart transplanters.”Footnote ¹²² Shapiro opined that “the public announcement by heart transplant surgeons that they would remove a beating heart in these circumstances, probably did much to undermine the public confidence…”Footnote ¹²³

South African legislators were not ready to accept the “living donor” portion of the bill supported by heart transplanters. Following lengthy discussions of the bill throughout much of 1969,Footnote ¹²⁴ the Anatomical Donations and Post-mortem Examinations Act No. 24, finally passed in 1970, eliminated the possibility of organ harvesting from a living person. It specified that the death of any donor must be established “by at least two medical practitioners” before removal of tissue could be authorized. Like UAGA, the Anatomical Donations and Post-mortem Examinations Act did not define death, instead leaving it up to physicians to determine that it had occurred. However, the act maintained oral consent to organ donation. Just as a death sentence could be applied on the basis of an oral confession, an organ donation could be orally consented to in the presence of two unspecified adults. The act also failed to specifically define to which “authorised institutions” donations could be made. Not until 1972 were specifications defining and identifying the purpose of donee institutions integrated into the act. Although it did not legislate liability coverage for physicians, it established their legal protection in another way: by requiring the authorization of a magistrate. In both the South African Act and UAGA, unclaimed bodies offered a legal way around consent should a body go unclaimed, recalling Forssmann's concerns about postmortem use of body parts without consent. Unlike UAGA, the act upheld the anonymity of donors and recipients.

Although the phrase “living donor” was excised from the bill as it became the act, South Africa's physicians had obtained nearly all other points discussed at the symposium Barnard convened in July 1968. The law that the South African Parliament passed made it legal for prisoners to donate organs, for authorized medical practitioners to harvest them without consent from unclaimed bodies in ill-defined institutions (not excluding prisons), for prison officers to coerce oral agreement to organ donation as they often coerced oral confession, and for the entire transaction to remain veiled in secrecy, under the cover of donor and recipient anonymity.