By Austin Sarat
The Conversation, Amherst College via Associated Press
BOSTON — In January 2023 two Democratic representatives, Judith Garcia and Carlos Gonzalez, proposed a bill that would offer prisoners in Massachusetts a new way to win reduction in their sentences: by donating their bone marrow or vital organs.
The bill stated that the commissioner of the Department of Corrections should establish both a bone marrow and organ donation program within the department and a committee focused on bone marrow and organ donation that would set eligibility standards for inmates interested in the program. While forbidding commissions or monetary payments for donors, it stated that prisoners could “gain not less than 60 and not more than 365 day reduction in the length of their committed sentence” if they donated bone marrow or an organ.
The legislators claimed that their proposal would respect the bodily autonomy of incarcerated people by letting them decide what to do with their vital organs. It also would address racial disparities by helping to expand the pool of donors.
Recently, however, Garcia and Gonzalez have walked back their proposal and are planning to introduce a version without the promise of a sentence reduction.
Still, the idea of giving sentence reductions in return for organ donation raises serious ethical issues. As someone who has studied punishment and imprisonment, including the conditions of confinement in American prisons, I’m aware that some states have allowed prisoners to donate organs without any external incentives. But the question is whether prison inmates can ever consent freely to organ donation.
The history of organ donation
The idea of transplanting organs as a medical cure is quite old. In 600 B.C., skin flaps were used for replacing missing noses, and 16th -century surgeons considered taking grafts of a patient’s tissue for another patient. But the practice of organ donation and transplantation began in earnest only in 1954, when Joseph Murray carried out the first successful kidney transplant. Other donated organs, including livers and hearts, were transplanted a decade later. However, it has always been an ethically fraught area, as the need for donated organs far outstrips the supply.
In 2022, 6,466 people became living organ donors in the United States, and another 14,903 people became posthumous organ donors. Yet, as of early 2023, more than 100,000 men, women and children are waiting for an organ donation so they can have a transplant. The MIT Technology Review notes that it is even harder for racial and ethnic minorities to get the organs they need. And thousands of people will die before the organ they need becomes available.
Altruism and the generosity of donors have neither closed the gap between the supply of donated organs and the demand nor addressed the issue that people of color struggle to find a match.
Recognizing these facts, various organizations and advocacy groups have developed codes of ethics for donating organs. For example, according to the American Medical Association, organ donation is acceptable only if donors give their informed consent. Additionally, donors must be provided with information regarding the purpose and risks associated with tissue donation. They must also be made familiar with any alternatives to donation and the right to withdraw consent.
Congress passed the National Organ Transplant Act in 1984 and established the Organ Procurement and Transplantation Network to maintain a national system to match organs and individuals. The organ transplant law intended to make sure that organs are not treated as commodities to be bought and sold.
[EARLIER: Mass. bill that would cut prison time for organ donations raises ethical, legal concerns]
Inmates as organ donors
Garcia and Gonzalez are not the first state officials to propose turning to prisoners to help with the organ supply problem in recent years.
Some of those cases are quite unusual. For example, in 2010, Mississippi Gov. Haley Barbour suspended the life sentences of two sisters, Gladys and Jamie Scott, on the condition that Gladys donate one of her kidneys to Jamie. Her dialysis treatment was costing the state almost US$200,000 per year, and Barbour wanted to save money by facilitating the organ donation.
In 2013, another governor, Ohio’s John Kasich, took executive action to explore the feasibility of allowing death row inmate Ronald Phillips to donate a kidney and other organs to sick relatives before he was put to death. But ultimately the state refused his request because of logistical and security issues involved in having the needed medical procedure done at an outside medical facility.
That same year, Utah became the first state to enact legislation authorizing prisoners to donate organs. It permits voluntary, posthumous organ donations by prisoners who die while they are behind bars. But, unlike the Massachusetts proposal, the Utah law does not offer incentives or rewards to inmates who sign up for the program.
Since 2016 Texas has had a policy similar to Utah’s. That policy allows inmates who die in custody to arrange to donate organs after their death. The Texas policy states: “The inmate will receive no award or compensation of any kind for his donation, including but not limited to preferred treatment by the [Texas Department of Criminal Justice] or improved opportunity for parole.”
In 2018, South Carolina joined Utah and Texas in writing permission for inmate organ donation into state law.
But they are exceptions. Today most states do not allow prisoners to donate organs at all. And federal prison inmates cannot make posthumous organ donations – but they can make living donations to immediate family members so long as they freely consent to do so.
Consent in a coercive environment
Some scholars do not think that prison inmates can freely consent to organ donation while being in the coercive environment of a prison. They regard inmate organ donation as exploiting a vulnerable population.
And even some who believe that inmates should be allowed to donate organs were troubled by the initial proposal from Garcia and Gonzales. As the journalist Matthew Cunningham-Cook noted, their original bill asked prisoners to “choose between their organs and their freedom” and was probably “not even … legal.”
While Rep. Gonzales recently told ABC News that “he was amending the language to remove the incentives,” he also noted that he would continue to push for legislation to allow inmate organ donation. Such legislation would, in his view, ensure that when it comes to the choice of whether to donate organs, inmates would “have the same basic rights as every citizen has in Massachusetts.”
In my view, this is a worthwhile goal, which, as Garcia and Gonzales now recognize, is best achieved without linking organ donation and sentence reductions.