Posted Apr 01, 2012 09:00 am CDT
“I am 37 years old and healthy,” Oregon death row inmate Christian Longo wrote in the New York Times in March 2011, and “throwing my organs away after I am executed is nothing but a waste.”
Longo, convicted of the 2001 killings of his wife and three children, wrote in the Times opinion piece: “I am seeking nothing but the right to determine what happens to my body once the state carries out its sentence.”
Longo says that he will drop his appeals if given the chance to donate. So far, the state of Oregon has declined.
But Longo’s quest to donate his organs has reignited the debate over how to handle prisoner organ transplants. Prison rights advocates and ethicists worry over consequences such as coercive donations and the fear of spreading diseases, including human immunodeficiency virus, if prisoners—especially death row inmates—are allowed to donate.
Another question percolating over the flip side of the issue is: Should inmates be allowed to receive donated organs?
“The shortages of organs are real and growing,” says Arthur L. Caplan, director of the University of Pennsylvania’s Center for Bioethics in Philadelphia. “But there are ethical considerations and practical obstacles.”
There are almost 113,000 people in this country awaiting some form of transplant, according to the United Network for Organ Sharing. And there are more than 3,000 death row prisoners. For individuals awaiting organs or those having received them, the answer is clear: Allow for the donation.
“If you are a prisoner, if you are on death row, and willing to donate an organ or group of organs versus taking it to the grave, I’m 100 percent for that,” says Scott King, a 46-year-old computer sales engineer who received a kidney from a living donor in 2001. “It’s much better to be alive than dead; so if someone is willing to donate, I’m all for it.”
The National Organ Transplant Act of 1984 prohibits organ donation made for “valuable consideration,” such as leniency in sentencing. However, the Federal Bureau of Prisons allows inmates to be living donors to members of their immediate family so long as the family bears the cost of the procedure. Many states have similar rules.
Thus far, no state has passed a law allowing death row inmates to donate their organs for general use upon their death. Nor does the Federal Bureau of Prisons permit death row inmates to donate organs upon death.
Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, does not believe that a prisoner on death row who chooses to donate organs has acted independent of coercive outside influences.
“Basically, you have a gun to your head on death row,” Dieter says. “To think that people act independently of that is not realistic.”
Caplan agrees that a prisoner could consent for reasons other than altruism, such as an attempt to salvage his reputation or get better treatment before execution.
Another concern is donation as part of punishment. “Are you going to get consent, or is the organ just going to be taken?” asks Caplan, author of “The Use of Prisoners as Sources of Organs—An Ethically Dubious Practice,” published in October in the The American Journal of Bioethics. “Some people propose just taking them as a part of punishment.”
Dieter, like other death penalty experts and ethicists, is quick to point out that this country does not want to become like China, where two-thirds of donated organs are harvested from prisoners.
“It’s a slippery slope,” says Dieter. If a state is going to allow for death row donations, “perhaps the state would then be encouraged or there would be an incentive for a state to take this inmate’s life to help another person’s life.”
Caplan adds that retribution, one of the goals of incarceration and execution, might be “undercut” if prisoners are given a chance to “turn themselves into kinds of heroes.”
“These are not things,” Caplan says, “that, I think, would sit well with victims and their families.”
In a discussion document issued in 1998, the United Network for Organ Sharing Ethics Committee says it “opposes any strategy or proposed statute regarding organ donation from condemned prisoners until all of the potential ethical concerns have been satisfactorily addressed.”
In addition to the ethical questions, the practical limitations are daunting, experts say. The Centers for Disease Control and Prevention in Atlanta is concerned about the safety of the organ supply. The prison population has a higher risk factor for HIV and other transmittable diseases.
“Prisoners tend to be high-risk people,” says Caplan. “They have a lot of infectious diseases. They are not the best population for healthy organs. Prisoners tend to be in bad shape. And when you are on death row, you are not getting a good diet and a ton of exercise.”
Caplan adds that, because of the lengthy appeals process, by the time a prisoner on death row is actually executed, he is often “pretty old, and that’s an obstacle.” Caplan also emphasizes that, to get viable organs, the method of execution might have to be changed; poisoning and electrocution damage the tissue.
Prison rights advocates say that while prisoners should not be donating their organs as a general rule, there may be occasions, such as when a close relative is in need, when the procedure should be permitted.
In Dieter’s opinion, organ donation presents less of an ethical dilemma when an inmate is donating to a relative in a way that doesn’t affect the inmate’s overall health. In a much-publicized case in late 2010 and January 2011, two Mississippi sisters imprisoned for their part in a robbery were released on the condition that the younger sister donate a kidney to the older sister.
Mississippi Gov. Haley Barbour suspended the sisters’ life sentences on the condition that the transplant was completed within a year. Ethicists like Caplan fear that, by suspending their sentences, the judge had turned an organ gift into essentially a business contract.
However, the organ donation was stalled, as both women were told they needed to lose weight before doctors could perform a transplant. At press time, the transplant had not taken place.
Another debate is whether prisoners should be permitted to receive transplants from the national waiting list. The question from opponents is whether convicts get expensive transplant services when some law-abiding citizens can’t. Even ethicists like Caplan can understand why the public might be concerned.
“Where is the organ coming from? If you are taking it away from someone who isn’t a prisoner, that may be unjust,” he says.
But, say prison rights advocates and some academics, a line of cases establishes that the Eighth Amendment protection against cruel and unusual punishment governs access to health care. Indeed, in 1976, the U.S. Supreme Court ruled in Estelle v. Gamble that a state could not bar prisoners from access to medical care.
“When someone is incarcerated, they lose their liberty to seek health care. The state therefore must provide whatever health care they receive. The argument is that a prison term or even a life term should not be a death sentence,” says E. Bernadette McKinney, an assistant professor at the Institute for the Medical Humanities in Galveston, Texas, who co-wrote a 2009 article on offend er organ transplants.
“Following that logical progression, it’s hard to say that an organ is not necessary care when someone’s life depends on it.”
For organ recipient King, the answer is this: “I guess if one is willing to receive from an inmate to benefit your life, then it should be a two-way street.”
Longo, in his essay, said, “There is no way to atone for my crimes, but I believe that a profound benefit to society can come from my circumstances.”