By Lilly Cushman, JHBL Staff Member
Recent developments within in the Massachusetts legislature compel us to consider an impossible question: what is your body worth to you? Members of the Massachusetts House of Representatives have proposed a bill that would give prison inmates the opportunity to donate their organs or bone marrow in exchange for a reduced prison sentence. Bill HD.3822, titled “An Act to establish the Massachusetts incarcerated individual bone marrow and organ donation program” proposes the establishment of a bone marrow and organ donation program within prisons. This program would allow “eligible incarcerated individuals to gain not less than 60 and not more than 365 day reduction in the length of their committed sentence…on the condition that the incarcerated individual has donated bone marrow or organ(s).”[i] This bill is proposed by Massachusetts State Representatives Carlos González and Judith Garcia who maintain that that this bill will help respect prisoners’ human dignity and agency by allowing them the choice to donate organs or marrow.[ii] However, the legislation also aims to expand the amount of potential organ donors.[iii] Those in favor of this legislation believe this program could address the organ shortage currently impacting the large group of people who are waiting for transplants. Still, it is imperative to consider the legal and ethical consequences of implementing such a program.
The lack of organs for transplantation in the United States is evident. Seventeen people die each day waiting for an organ transplant and over 105,800 people are currently waiting to receive a transplant.[iv] Specifically, an argument promulgated by Representative González in favor of this legislation is that the instatement of this bill could reduce inequities related to bone marrow and organ shortages which disproportionality effect Black and Latino communities.[v] The disparities in organ and marrow recipients is also indisputable. Between the years of 2010 and 2014, compared to White individuals, Black individuals were 25% as likely to receive a live donor kidney and Hispanic individuals were 50% as likely to receive a live donor kidney.[vi] A lack of Black and Hispanic organ donors plays a large role in this inequity.[vii] While organs are not matched on the basis of race and ethnicity, there is a higher likelihood an individual waiting for an organ transplant will receive an organ from a donor from their own racial or ethnic background.[viii] This phenomenon exists because compatible blood types and tissue markers, which are necessary for organ matches, are more prevalent among individuals who are of the same ethnicity.[ix] As to the prison population in Massachusetts, there is an overrepresentation of these racial minorities.[x] Thus, this program would supposedly increase diversity in donors and access to transplants for certain marginalized communities.
On the other hand, the legal and ethical concerns regarding this legislation are numerous. There are already a multitude of legal challenges this bill will likely face. The proposal that inmates could donate organs in exchange for reduced prison sentences may be in direct violation of federal law. The National Organ Transplant Act (NOTA) passed in 1984 expressly prohibits individuals from receiving or transferring any human organ for valuable consideration for use in human transplantation.[xi] Thus, offering a reduced sentence on the condition of an organ transfer is likely in violation of federal law under NOTA. Further, the United Network for Organ Sharing (UNOS) Ethics Committee has already rejected strategies and proposed statute regarding organ donation from condemned prisoners in exchanged for a lesser sentence.[xii] Since UNOS is the organization that contracts with the federal government to manage the United States organ transplant system, the proposed law will likely face significant challenges overcoming UNOS’s decision.[xiii]
Beyond the legal scope, the ethical dilemmas cannot be ignored. This is not the first instance of the United States using prisons to find individuals willing to volunteer their bodies in the name of medical pursuits. Clinical trials on prisoners in the United States began in 1914.[xiv] Prisoners have been injected with dangerous diseases, live cancer cells, and have been subjects of transplant experiments in the name of medical progress.[xv] In the 1950s it was popular to reward prisoners with early parole or shortened sentences in exchange for participation in medical research.[xvi] Federal regulations have since limited this form of experimentation in response to ethical concerns related to prisoner’s vulnerability as a population, informed consent concerns, and the vast history of abuses that have occurred through prison experimentation.[xvii] These same concerns should be at the forefront of discussions surrounding this proposed bone marrow and organ donation program.
Undeniably, there are risks associated with donating organs. Surgery to donate organs comes with the same risks common in other surgeries, including possibility of infections or blood clots. Living donors can spend days recovering in the hospital and may not be able to return to normal activities until six to twelve months after the surgery.[xviii] Further, these risks may rise due to the substandard treatment prevalent in prison health care. Inmates have significantly higher rates of disease compared to the general population and correctional facilities are often ill equipped to provide proper medical treatment.[xix] Substandard treatment during the donation procedure would be a possibility for prisoners even if the donation occurred in outside hospital or healthcare facilities. Studies have reported that a large number of individuals within the criminal justice system have felt stigmatized while being treated in the non-carceral healthcare system, which has prevented them from receiving adequate care.[xx] Proper implementation of this legislation necessitates a complete reform of the prison healthcare system as a whole. It is unacceptable to subject incarcerated individuals to these procedures without assurance that the facility where the transfer occurs meets sufficient safety standards. Given the high risks of disease and ill-equipped medical facilities within hospitals, proper care for recovery from procedures is another factor that must be considered.
Considering the medical risks and difficult moral questions that come along with giving up parts of your own body, it is understandable why donating one’s organs requires clear and informed consent.[xxi] Some critics have questioned whether a person who is in prison can understand and accept the risks that go alongside organ donation when they are faced with the option of less time in prison.[xxii] Prisoners deserve to be treated as autonomous individuals, who are able to make their own decisions. That said, prisoners are in a vulnerable position. Their autonomy is significantly restricted while confined within a correctional facility and because of this, prisoners have historically been subjected to undue inducement and exploitation.[xxiii] Power imbalances, restraints on freedom, and coercion can become pervasive in prison environments.[xxiv] As a result, these influences may affect an incarcerated individual’s ability to rationally consent to this program. While Representative Garcia argues this bill would restore prisoners’ bodily autonomy by providing them the ability to donate organs and bone marrow, this bill may effectuate the opposite result.[xxv] It is vital to question if offering an incentive of this nature will allow free, informed, and uncoerced decisions to be made. Is it reasonable to expect individuals to truly evaluate the risks that come alongside donation when those risks are compared to the possibility of leaving prison early?
If this legislation was to pass, prisoners could reduce their sentence by sixty days to a full year on the condition they donate their marrow or organs. There is no proposed guidance as to how Massachusetts would decide upon what amount of the sentence will be reduced. It is an outrageous hypothetical to consider: will a kidney be worth a few months, perhaps a liver donation worth a year? Logistical concerns aside, this proposed bill will need to overcome some considerable ethical and legal obstacles. Significantly, it is important to question why prisoners are being targeted as a means to rectify the Massachusetts organ shortage problem.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Lilly is a second-year student at Suffolk University Law School and a staff member of the Journal of Health and Biomedical Law. Lilly is pursuing a concentration in Health and Biomedical law with an interest in healthcare equity and disability law. Prior to law school, Lilly graduated from the University of South Carolina with a degree in Political Science.
Sources
[i] H.D. 3822, 193rd Gen. Assemb., Reg. Sess. (Mass. 2023).
[ii] Cara Murez, Massachusetts Bill Would Let Prisoners Donate Organs in Exchange for Shorter Sentence, U.S. News (Feb. 2023), https://www.usnews.com/news/health-news/articles/2023-02-09/massachusetts-bill-would-let-prisoners-donate-organs-in-exchange-for-shorter-sentence.
[iii] Jessica Hamzelou, A Massachusetts bill could allow prisoners to swap their organs for their freedom, MIT Technology Review (Feb. 2023), https://www.technologyreview.com/2023/02/03/1067768/massachusetts-bill-prisoners-swap-organs-freedom/.
[iv] Organ Donation Statistics, HRSA Organdonor.gov (Mar. 2022), https://www.organdonor.gov/learn/organ-donation-statistics.
[v] Cara Murez, Massachusetts Bill Would Let Prisoners Donate Organs in Exchange for Shorter Sentence, U.S. News (Feb. 2023), https://www.usnews.com/news/health-news/articles/2023-02-09/massachusetts-bill-would-let-prisoners-donate-organs-in-exchange-for-shorter-sentence.
[vi] Race and Organ Donation, Gift of Life Donor Program https://www.donors1.org/learn-about-organ-donation/who-can-donate/race-and-organ-donation/ (last visited Feb. 26, 2023).
[vii] Laura A. Siminoff, et al., Racial Disparities in Preferences and Perceptions Regarding Organ Donation, J. Gen. Internal Med. (Sep. 2006), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1831604/.
[viii] Race and Organ Donation, Gift of Life Donor Program https://www.donors1.org/learn-about-organ-donation/who-can-donate/race-and-organ-donation/ (last visited Feb. 26, 2023).
[ix] Race and Organ Donation, Gift of Life Donor Program https://www.donors1.org/learn-about-organ-donation/who-can-donate/race-and-organ-donation/ (last visited Feb. 26, 2023).
[x] Liz Mineo, Dissecting Racial Disparities In Mass. Criminal Justice System, The Harvard Gazette (Sep. 2020), https://news.harvard.edu/gazette/story/2020/09/black-latinx-people-overrepresented-in-massachusetts-prisons-study-says/.
[xi] National Organ Transplant Act of 1984 § 301, 42 U.S.C. § 274e.
[xii] The Ethics of Organ Donation from Condemned Prisoners, Organ Procurement and Transplant Network, https://optn.transplant.hrsa.gov/professionals/by-topic/ethical-considerations/the-ethics-of-organ-donation-from-condemned-prisoners/ (last visited Feb. 26, 2023).
[xiii] UNOS, https://unos.org (last visited Feb. 26, 2023).
[xiv] Caitlin Fitzpatrick, The Prisoner’s Dilemma: The History, Ethical Dimensions, and Evolving Regulatory Landscape of Clinical Trials on Inmates, Digital Access to Scholarship at Harvard (May 2012) https://dash.harvard.edu/bitstream/handle/1/10985164/Fitzpatrick_2012.pdf?sequence=1.
[xv] Caitlin Fitzpatrick, The Prisoner’s Dilemma: The History, Ethical Dimensions, and Evolving Regulatory Landscape of Clinical Trials on Inmates, Digital Access to Scholarship at Harvard (May 2012) https://dash.harvard.edu/bitstream/handle/1/10985164/Fitzpatrick_2012.pdf?sequence=1.
[xvi] Caitlin Fitzpatrick, The Prisoner’s Dilemma: The History, Ethical Dimensions, and Evolving Regulatory Landscape of Clinical Trials on Inmates, Digital Access to Scholarship at Harvard (May 2012), https://dash.harvard.edu/bitstream/handle/1/10985164/Fitzpatrick_2012.pdf?sequence=1.
[xvii] The Ethical Framework for Research Involving Prisoners, Instit. Med. Comm. on Ethical Considerations for Revisions to DHHS Regul. for Prot. of Prisoners Involved in Rsch. (2007), https://www.ncbi.nlm.nih.gov/books/NBK19885/.
[xviii] Risks and Benefits of Becoming a Living Donor, Myhealth.Alberta.ca (July 2019), https://myhealth.alberta.ca/KidneyTransplant/transplant-recipient-information/living-donation/risks-and-benefits.
[xix] Incarceration and Health: A Family Medicine Perspective, AAFP, https://www.aafp.org/about/policies/all/incarceration.html (last visited Feb. 26, 2023).
[xx] Lindsey A. Vandergrift & Paul P. Christopher, Do prisoners trust the healthcare system?, Health Justice (July 3, 2021) https://doi.org/10.1186/s40352-021-00141-x.
[xxi] Laura A. Siminoff & Heather M. Traino, Consenting to donation: an examination of current practices in informed consent for tissue donation in the US, NIH (Mar. 8,2012) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3568202/.
[xxii] Jessica Hamzelou, A Massachusetts bill could allow prisoners to swap their organs for their freedom, MIT Technology Review (Feb. 2023), https://www.technologyreview.com/2023/02/03/1067768/massachusetts-bill-prisoners-swap-organs-freedom/.
[xxiii] The Ethical Framework for Research Involving Prisoners, Instit. Med. Comm. on Ethical Considerations for Revisions to DHHS Regul. for Prot. of Prisoners Involved in Rsch. (2007), https://www.ncbi.nlm.nih.gov/books/NBK19885/.
[xxiv] Judith Levine, No, Trading Flesh for Prison Time Is Not “Bodily Autonomy”, The Intercept (Feb. 2023), https://theintercept.com/2023/02/19/organ-donor-ethics-prison-massachusetts/.
[xxv] Sarah Betancourt, A bill that would let prisoners trade organs for a reduced sentence faces significant blowback, WBGH (Feb. 2023), https://www.wgbh.org/news/local-news/2023/02/02/a-bill-that-would-let-prisoners-trade-organs-for-a-reduced-sentence-faces-significant-blowback.