Surgeons at a New York hospital examine a patient for possible rejection of a pig kidney in September 2021. Joe Carrotta (AP)
A sentence reduction of between 60 and 365 days in exchange for a kidney, liver or bone marrow harvest. The bill that the Massachusetts House of Representatives is trying to push forward is sparking a profound bioethical debate. Is it legitimate to exploit an organ? Can you give up one out of mercantilist desire, in this case buying a few days of freedom? The answer, if any, could affect the fate of the 6,000 inmates in the liberal Bay State, as Massachusetts is known, and by extension, the rest of the US prison population.
The bill was sponsored by Democratic lawmakers. There are quite a few human rights activists who flatly reject the proposal. Michael Cox, executive director of the Black and Pink Massachusetts Prison Abolition Organization, has called the move “unethical and depraved.” “It’s just appalling to incentivize the sale of body parts in exchange for the world’s most valuable commodity,” Cox said in statements collected by digital newspaper Boston.com. The ethics committee of the US National Transplant Network (UNOS), which is a non-profit association, has also criticized such initiatives. “Any law or proposal that allows an individual to exchange an organ for a reduced sentence raises numerous issues,” according to an official statement published on its website.
If freedom, as activist Cox points out, is the greatest good, then what is health in a country that treats it like a commodity? In upstate New York, living donors have received a $10,000 grant since late last year to reimburse them for hospital expenses incurred as a result of the procedure. It is the first government program in the country to allow individuals to be reimbursed for the cost of donating a kidney or liver. “Living organ donors are true heroes, and with this legislation we are taking significant steps to support their sacrifice and save lives,” Gov. Kathy Hochul said at the signing of the bill.
The groundbreaking New York legislation has a reason: It is one of the states that comes last in the number of donations. At the end of December, when the law was passed, 8,569 people were on the transplant waiting list, of whom 7,234 needed a kidney. A trend that, according to the National Transplant Network, can be extrapolated to the rest of the country: The United States alone achieved one million transplants last year, “a historic event,” according to the organization, but more than relative to a total population of over 330 million people . According to the UNOS, just over 104,000 Americans are currently waiting for an organ. Between January and December 2022, from 21,368 donors (living and dead) enabled 42,888 transplants. During the same period, there have been more than 6,400 living donation surgeries, a modality hit by the pandemic and which has seen an increasing number of donors of a segment of the liver, an organ that regenerates easily, compared to most kidneys.
precedents
The law precludes organ donation from prisoners being executed in states that still use the death penalty — the majority die as a result of a drug cocktail — only the living remain as the captive population, hence the Massachusetts initiative as Test bench viewed for the rest of the country. But the commercial transaction inherent in Massachusetts law, the incentive for reduced sentences, also raises legal issues, not just ethical ones, since the National Organ Transplant Act of 1984 prohibits the exchange of an organ for “valuable consideration.”
In 2007, South Carolina lawmakers considered a proposal similar to that in Massachusetts that would have reduced prison terms by up to 180 days in exchange for donations. However, critics debated its legality, and the state eventually adopted a voluntary organ and tissue donation program that allows inmates to donate without compensation. In addition, the Federal Bureau of Prisons allows prisoners to donate their organs while incarcerated, but only to immediate family members. In 2013, Utah allowed the release of prisoners who died behind bars. Most other states do not allow inmate organ donation.
The Massachusetts bill, introduced in the State House in January, raises two other important problems: the high prevalence of infectious diseases among prison inmates (including AIDS, hepatitis, tuberculosis), doubts about the suitability of organs, and pronounced racial inequality in the precarious balance between donors and beneficiaries, and always against the latter. The Prisoners’ Legal Services of Massachusetts organization, which works to reform the prison system, reminded the initiative’s initiators “of the racial inequality in our healthcare system that BIPOC communities have left behind [acrónimo en inglés de negros, indígenas y gente de color] disproportionately affected by organ and bone marrow shortages.” A fundamental structural problem that, according to critics, a prisoner’s interested calculus, the desire to shorten his sentence by a few days, will not solve.
As the debate continues on the networks, the extent of the sentence reduction if the law goes through has yet to be determined: how many days in exchange for which organ or piece of that other. Difficult metric given the lack of precedent and benchmarks; a decision that will correspond to a five-member select committee, with only one dedicated to defending prisoners’ rights.