Massachusetts bill proposes reduced sentences for inmates in exchange for organ donation

A draft bill in the Massachusetts House of Representatives that proposes sentence reductions for inmates in exchange for organ donations has opened a profound ethical debate. The offer on the table, which could be extended to 6,000 prisoners in the liberal state, is between 60 and 365 days shaved off their terms in exchange for a kidney, a section of liver or a bone marrow extraction.

The bill, put forward by Democratic legislators, has been met with incredulity by human rights activists. Michael Cox, director of Black and Pink Massachusetts, an organization dedicated to abolishing the criminal punishment system, has described the measure as “unethical and depraved.”

“They’re a marginalized group in society, highly stigmatized and extremely vulnerable. And so to incentivize the selling of your body parts in exchange for the most precious commodity in the world – which is time on this earth, and your freedom – was just so appalling,” Cox said in an interview quoted by boston.com.

The ethics committee of the NGO United Network for Organ Sharing (UNOS) also criticized initiatives of this kind: “Any law or proposal that allows a person to trade an organ for a reduction in sentence, particularly a sentence from death to life in prison, raises numerous issues,” the organization said in a statement posted on its website.

If freedom, as Cox says, is the most precious commodity, where does health rank in a country that treats it as one? In New York State, living donors receive a $10,000 reimbursement for the hospital costs of the procedure in the first state-level program of its kind in the US. “Living organ donors are true heroes, and with this legislation, we are taking meaningful steps to support their sacrifice and save lives,” Governor Kathy Hochul said when she signed the bill into law last December.

New York’s pioneering legislation was enacted for a reason: it is one of the US states with the lowest number of donations. When the law was adopted, there were 8,569 people on the waiting list for a transplant, of whom 7,234 needed a kidney. It is a trend that can be extrapolated to the rest of the country, according to UNOS: there were one million transplants performed last year in the US, “a historic milestone” according to the organization, but more than relative in a total population that exceeds 330 million. According to UNOS, just over 104,000 Americans are currently waiting for an organ. Between January and December 2022, organs from 21,368 donors (living and deceased) made 42,888 transplants possible. In the same period, there were more than 6,400 living donor operations, a modality that has been affected by the pandemic and in which, compared to kidneys, there are more and more donors of a segment of liver, an organ that is more easily regenerated.

US law prohibits the donation of organs from executed prisoners – most die by lethal injection, which involves a cocktail of drugs – only non-death row inmates remain as a captive population for the initiative, which is why the Massachusetts proposal is seen as a test bed for the rest of the country. But the commercial transaction inherent in the Massachusetts law – the incentive of a reduced sentence – also raises legal questions as the National Organ Transplant Act of 1984 prohibits the exchange of an organ for “valuable consideration.”

In 2007, South Carolina lawmakers considered a similar that would have reduced prison sentences by up to 180 days in exchange for donations. But critics debated its legality, and the state eventually adopted a voluntary organ and tissue donation program that allows inmates to donate with no incentives attached. The Federal Bureau of Prisons allows inmates to donate their organs while incarcerated, but only to immediate family members. In 2013, Utah allowed donations from prisoners who had died while behind bars. The majority of other states do not allow inmate organ donation.

The Massachusetts bill, which was introduced in the state House in January, raises two other key issues: the high prevalence of infectious diseases among the prison population (AIDS, hepatitis and tuberculosis, among others), which raises suspicions about the suitability of the organ, and the marked racial inequality in the precarious balance between donors and beneficiaries. The Prisoners’ Legal Services of Massachusetts, which advocates for reform of the penal system, has highlighted “the racial inequality in our health care system, which has left BIPOC [black, indigenous and people of color] communities disproportionately affected by the shortage of organs and bone marrow.” Critics of the bill say this is an underlying structural problem that a prisoner’s self-interest – the desire to secure a reduced sentence – will not solve.

While the debate continues, the task of establishing the scale of sentence reduction remains: how many days in exchange for which organ? It is an almost impossible metric given the absence of precedents and yardsticks. The decision, should the law be approved, will fall to a special committee of five members, only one of whom advocates for the rights of prisoners.

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