HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, May 23, 2007

Prisoners as Organ Donors

The National Law Journal has an interesting post responding to South Carolina's recent decision to encourage prison inmates to donate organs.   An earlier version of the program offered a reduced sentence as an extra incentive to donate.  Rev. Michal Orsi writes about the many ethical concerns raised by the program:

First, the National Organ Transplant Act (1984) makes it a federal crime to take or to offer valuable consideration for a transplant organ. Even without the prospect of a reduced sentence, prisoners may feel pressured to donate organs in the hopes of receiving other favors. In light of this, the proposed law may still violate federal law since it would make a body part an exchangeable commodity.

Second, ethicists have always agreed that organ donation must be freely given. This means that the donor must not be subject to any force, pressure or fear. Freedom may also be compromised because the intense hothouse culture that exists in prisons often commands conformity. Prison is not a pleasant place. Some inmates who would not ordinarily donate an organ may feel compelled to do so in order to convince a parole board of their rehabilitation.

Third, if this legislation includes live donors, it would also compromise the medical profession, whose first principle — "do no harm" — would be violated. Surgical procedures such as kidney transplant from a live donor could put a donor in physical jeopardy. The operation is risky, may have long-term consequences and may even cause death. In these cases, it would seemingly be a betrayal of a doctor's professional ethics to perform such a surgery. Needless to say, good medical ethics require that the benefit outweighs the risk. The present and future danger of live transplants would unduly risk the prisoner's health and, therefore, the proposed legislation would be substandard according to traditional medical ethics. The principle of "do no harm" is often discussed when determining the ethics of a physician being involved in prison executions by lethal injection. Most of those involved in the field of medical ethics consider this a violation of the Hippocratic Oath.

Fourth, for living donors, there are moral issues that violate the common law principle of totality. Totality forbids the mutilation of the human body that would compromise its anatomical or functional integrity. This means that any removal of a healthy body part or any decrease in bodily function caused to the donor would be deemed immoral. An exception has been made only if fraternal love is the motive for the donation. Therefore, with a donation from a living donor, common law has always presumed some kind of authentic connection between the donor and the recipient, usually kindred. An exchange between people unknown to each other imperils the concept for charity and human solidarity that have been traditionally recognized as the only clear moral grounds for the risks involved in the procedure and the violation of the principle of totality.

To put the ethical problems of the South Carolina proposal in high relief, it must be noted that even programs that require the donation of an organ to receive an organ or programs that propose offering a monetary award to donor families for donor funeral expenses are considered to be unethical. They do not conform to the federal law that is based on the common law principle that organ donation must be a totally free altruistic act.

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