The Ultimate 'Get Out of Jail Free' Card? Organ Donation

The Commonwealth of Massachusetts has concocted a plan to trade prisoners' organs for less time behind bars.

If passed, HD 3822 would establish a program by which incarcerated individuals could choose to donate their bone marrow and organs in exchange for a 60- to 365-day reduction in the length of their sentence.

On the face of it, this sounds like a great idea. More than 105,000 Americans are on the national organ waitlist. And each day, seventeen people on that list die. Shouldn’t society do everything it can to boost the supply of organs?

As a physician and ethicist who supports organ donation, I argue that HD 3822 is not the solution.

First, reducing sentences for organs is coercive. Most people do not donate organs to people they don’t know. In the U.S., anonymous non-biological and unrelated organ donation accounts for a mere 3.1 percent or less of donations. Although efforts are being made to encourage altruism more broadly, most people who donate have some incentive to do so–often, a close relationship with an organ recipient serves as inspiration. But for Massachusetts, it’s naïve to think that hope for a "get out of jail free" card won’t coerce incarcerated individuals into donating.

Moreover, HD 3822 violates established medical ethics guidelines by exploiting a vulnerable population. Since antiquity, doctors have pledged to help and not harm their patients. But such commitments become fuzzier when populations of interest are not actual patients. Medical researchers, for example, have a sordid history of manipulating vulnerable groups–from cruel experiments in Nazi concentration camps to federally-sponsored attempts to induce gonorrhea infections among prisoners at Terre Haute prison in Indiana and Guatemala to decades of dermatologic experiments on inmates at Holmesburg Prison. And the list goes on.

The culmination of such experiments, however, is the Common Rule, the codification into law of ethical principles–informed consent, beneficence, justice, and respect for persons, including specific safeguards for those most at risk of exploitation. The Common Rule establishes ethical principles for research that should govern all healthcare interactions. HD 3822 offers no justification for why it targets incarcerated persons or how it meets contemporary medical ethics standards.

Finally, this bill can potentially exacerbate inequalities extant in health care. Not only has incarceration been linked to poor health outcomes, but retrieving organs from prisoners will essentially increase the national organ supply at the expense of Black prisoners, who comprise a disproportionately higher percentage of the incarcerated. What’s more, organ donation is not without risks.

Indeed, according to the US Department of Health & Human Services, a “recipient enjoys a disproportionate share of the benefits (improved health and life expectancy), while the donor assumes the burden of an invasive surgical procedure and its potential long-term adverse consequences. There are no direct medical benefits to the living donor.” Although risks to donors are minimal, and the financial burden under HD 3822 will be covered by the receiving institutions, the physical burden is borne by the bodies of the incarcerated.

The Massachusetts bill offers a clever way to get out of jail. But it’s not free; it comes at a cost. Methods already exist for reducing sentence length. Incarcerated individuals can cooperate with authorities, participate in rehabilitation programs, or exhibit good behavior.

Sponsors of the legislation insist that the bill serves to honor the autonomous wishes of the incarcerated to donate. Bill co-sponsor Representative Judith Garcia said the bill would “restore bodily autonomy to incarcerated folks by providing opportunity to donate organs and bone marrow” and “recognize incarcerated donors’ decisions by offering reduced sentences.” But HD 3822 does neither of the sort. If passed, it would codify coercion and unethical methods and exacerbate racial disparities in health care.

If we are truly committed to increasing the organ pool, we must not do so at the expense of the vulnerable. We must instead become donors ourselves.