Flesh for Freedom?
According to research conducted by the Organ Procurement and Transplantation Network, more than 4,600 people in Massachusetts and 106,000 people in the U.S. are on the waiting list for organ transplants, with 28% of those waiting in MA identifying as Black, Hispanic, or Latino [1]. Alarmingly, 2021 statistics from the Vera Institute of Justice revealed that there were 6,148 people currently incarcerated in MA, with 54% identifying as Black or Latinx, despite those racial groups only making up 21% of the state’s population [2]. Massachusetts state legislature Bill H.2333 aims to tackle both the crises of organ donation shortages and mass incarceration by shortening sentences of incarcerated people from 60 to 365 days in exchange for organ donations. The bill would create a committee to determine the amount of organ or bone marrow donations that warrant a sentence reduction. Democratic Representatives and sponsors of the bill Judith Garcia and Carlos González assert the policy will expand the donor pool and reduce the health disparity of organ shortages for communities of color triggered by the disproportionate targeting of marginalized racial groups by the criminal justice system [3]. This is critical since communities of color are already at heightened risk for health ailments requiring organ donations, and the racist impacts of mass incarceration have limited the donor pool of matches, creating long waiting lists for African Americans and Latinos [4]. In response, the bill has faced significant public backlash in the media and only a handful of MA legislators are backing the policy. Critics have raised concerns over the federal legality of the bill and the capacity of prisons to care for those undertaking risky donation surgeries, as well as ethical and legal problems of objectifying the human body [5].
Despite making poignant observations on the detrimental state of organ donation and mass incarceration in MA, the sponsors of the bill make profound ethical and legal oversights by commodifying the bodies of people in prison, even when the current prison medical care provider in MA —Wellpath Recovery Solutions —is failing to meet basic care standards for those incarcerated [6]. The Act to Establish the Massachusetts Incarcerated Individual Bone Marrow and Organ Donation Program risks exploiting already vulnerable populations in inherently coercive environments and further violates human dignity in prison spaces where dehumanization is incessant. Massachusetts has the opportunity to transform medical care in the state to confront racial injustice while at the same time changing the way that society thinks about prisons as an inevitable fixture of society, serving as a model for the rest of the nation. It is crucial to highlight the ethically and legally dubious nature of the bill that puts both organ donors and recipients at risk for the state to drive efficacious policy solutions to address systemic injustices that perpetuate both mass incarceration and organ shortages. MA Bill H.2333 is a morally and legally impermissible policy to abate the organ donor shortage, promote decarceration, and dismantle stigmas against incarcerated people. Legislators should instead focus their efforts on policies addressing health disparities for both marginalized people in prison and society through healthcare reform and ending harmful prison medical contracts.
Fundamentally, there is a dispute over the legality of MA Bill H.2333. The National Organ Transplant Act (1984) bans organ sale on the federal level and created a national organ donation system and scientific registry to report donation and transplant data. A key provision of the NOTA is that it makes the transfer of human organs for “valuable consideration” a crime. An acute legal issue raised by Bill H.2333 is that the exchange of organs for sentence reductions commodifies the human body, which would violate this “valuable consideration” rule. Robert Andorno, a Research Fellow at the University of Zurich’s Institute of Biomedical Ethics and Medical History, defines human commodification as the “turning of people into commodities or objects of trade,” with two defining attributes being that people are made to be objects and “gift-giving relationships are changed into commercial contracts.”[7] Andorno asserts that it is a universally recognized idea that legally people should not be treated as objects, which has been termed “‘the primary truth of law.’”[8] Incentivizing organ donation creates a compensation system that makes prison time reductions equivalent to a payment and objectifies those incarcerated. It is exploitative because the incentive to donate no longer becomes plainly altruistic to give the gift of life to someone in desperate need, but a desperate act of survival to help remove oneself from horrid conditions. If the primary truth of law condemns such commodification for all members of society, why are incarcerated people judged with a different standard?
Some may dissent that the capitalistic free market serves as “‘the primary truth of law’” since humans are already able to trade their time and labor (or their bodies) on the market and, at the end of the day, the organ supply needs to increase to save lives. But, in the case of prison environments, the end doesn’t justify the means. This compensation market creates a dangerous and likely legally indefensible mentality that reduces organs to their monetary value and alienates already isolated people in prison as bodies of spare parts. There is a stark difference between the choice of selling one’s labor services while being able to refuse an insufficient price in the market and permanently removing a living piece of flesh from one’s self for a price determined by lawmakers. Incentivizing organ donation to save lives cannot be considered an ethical or legal option when it dishonestly takes advantage of incarcerated individuals longing for freedom from a cell the size of a parking space, willing to sell their body parts for any price to be reunited with their loved ones. Thus, there is a strong case that this bill would violate the federal NOTA law since shortened sentences are a form of compensation (which is quite a valuable consideration for individuals longing for liberty).
The United Network for Organ Sharing Ethics Committee created under the NOTA already acknowledged Bill H.2333 and “opposes any strategy or proposed statute” on prison organ donation “until all of the potential ethical concerns have been satisfactorily addressed.”[9] It would be a waste of legislators' limited time and resources to deliberate immensely unethical legislation that would most likely be rejected by the courts, instead of focusing on passing bills to address health disparities contributing to the demand for transplants.
In contrast to worries about legally prohibited commodification and exploitation, Representative González, a sponsor of the bill, emphasized how the legislation will return bodily autonomy to those incarcerated [10]. But, in such asymmetrical environments, can people in prison truly consent to such a donation in an informed manner? A New England Journal on Criminal and Civil Confinement article by Collen M. McCarthy discusses how within prisons, there are several motivations why people consent to become volunteers in scientific experiments that free citizens would not consent to, including “relief from monotony and oppressiveness of prison routine and escape from a lonely and tedious existence,” “the ability to obtain compensation,” “the concept of altruism,” “safety from violence in prison,” and “the risk incentive correlated with volunteering,” where people in prison view volunteering as a “daring attempt or an enticing risk” that earns them status rather than as a risk to their lives [11]. These motivations drive coercion in decision-making and negate the informed consent legally required by the NOTA to make an organ donation, substantiating how people in prison would be unable to rationally evaluate the risks of major surgery when faced with compensation of a shortened sentence, and disproving the idea of full autonomy. For example, the Organ Procurement and Transplantation Network (OPTN) created under the NOTA describes how the U.S. organ donation system itself is built around this altruistic cause of giving the gift of life [12], while many people in prison feel compelled to repay their debts to society and to be cleansed of heavy guilt over the crimes committed [13], which could be highly exploited in the noble pursuit of organ donation, making this bill legally and morally unjustifiable.
Although it could be argued that guilt can play a role in general society and not every donation is altruistic, altruism maintains a critical part of the process to society at large. According to a report by the OPTN, it was found that opposition to eliminating altruistic giving through incentivization could reduce donation rates. Anecdotal reports from organ donor families suggest that if they were incentivized for their donation they would view it as “‘repayment’” and “would have changed their response to request for donation due to a perceived or real element of coercion,” attaching dangerous negative stigmas to the organ donation and demonstrating how the bill can counterproductively exacerbate the organ shortage [14].
Some supporters of the legislation may also counter that individuals still made the choice to donate regardless of their reasoning, but the fact that there are scant other reasonable alternatives to alleviate themselves of horrid prison conditions directly undermines the voluntary nature of the decision to donate a body part. In other words, when faced with no other options, giving people the chance to donate would offer a vehicle, not a choice, to remove themselves from violent prison lifestyles and simply survive. Adequate consent is a key legal standard that must be met when anyone is to become an organ donor. Once again, proponents of Bill H.2333 treat people in prison as substandard human beings and ignore the realities of life behind bars, further amplifying society’s negative perceptions of incarcerated individuals as objects that are expendable and commodifiable. This is not the way to accomplish decarceration and shift societal attitudes away from justifying prisons as natural and irreplaceable institutions of the modern world.
In relation to adequate consent within prisons, McCarthy also describes the parole incentive as a dominant motivating factor for people to volunteer for research. McCarthy explains how “an implied assumption of hope remains for the inmates” despite how becoming a test subject in an experiment will not affect their parole status since any chance or inclination of favorable treatment by a parole board will trigger a person in prison to volunteer [15]. For people in MA, the strength of the parole incentive coupled with the revolving door parole system could induce greater exploitation because people might become organ donors to appear in a positive light for the parole board, once again negating the informed consent required under the NOTA and making this bill legally impermissible. Even on the slim chance that they are released, it is highly likely that they will return to prison again, as slightly under a quarter of people in state prison in Massachusetts return within one year, “not because they committed a new crime, but because they violated a condition of their parole.”[16] For instance, in 2019, a person on parole was sentenced to return to prison by a Massachusetts appeals court judge for using a smartphone, even though smartphone usage was unrelated to the crime he committed. These types of technical violations accounted for ninety percent of failed parole cases in Massachusetts in 2018 [17]. According to Jorge Renaud, a formerly incarcerated prison turned reform advocate, people in prison prefer to “spend their sentences in jail than pay the state $80 a month to be supervised by an armed parole officer with wide discretion about their lifestyle.” As a result of the parole system “snaring individuals for minor missteps,” people will keep returning to prison on unjust parole technicalities, except this time they will have one less bodily organ to use as leverage to reduce their time spent behind bars [18]. Consequently, prison organ donation in exchange for sentence reductions would only serve to exacerbate a failed parole system and encourage a vicious, repeating cycle of incarceration and corrupt parole decisions to generate a greater supply of organs. Bill H.2333 cannot act as a meaningful policy to curtail mass incarceration at least until the unjust and ethical problems with parole and what counts as violations are confronted by legislators.
Even looking past the motivations of people in prison that negate informed consent and parole coercion, how viable are incarcerated people as donors when it comes to their health? According to a Prison Policy Initiative report on the health of people in state prisons, compared to the general population, people in prison and jail disproportionately suffer from chronic health conditions that lead to failure of the heart and kidneys including hepatitis C, untreated HIV, diabetes, heart disease, and hypertension, and poor screening methods mean that conditions often go undiagnosed and underreported [19]. Therefore, the diseases that lead people to request organ donors are already predominant among people of color and the poor, and are even more apparent in the incarcerated populations who are also disproportionately poor people of color, demonstrating the permeating systemic injustices within the healthcare system and how mass incarceration serves to exacerbate this problem. Nevertheless, having people in prison with the same health problems that cause people to go on organ waiting lists serve as vital donors would be highly illogical and immoral since it would put both donors and recipients at risk by further deteriorating their health and spreading diseases.
Proposing people in prison with disproportionately poor health as donors is highly problematic when specifically evaluating the healthcare of MA prisons. A 2022 report by the Private Equity Stakeholder Project documented the notoriously deplorable record of Wellpath Recovery Solutions — the MA prison health services contractor — finding that Wellpath “continues to be mired in regulatory and reputational risk related to conditions that have endangered and harmed inmates under its care” with facilities “characterized by poor intake and screening; difficulty accessing care; and inconsistent medication management practices.”[20] Furthermore, another alarming study by the Disability Law Center on patients at Bridgewater State Hospital correctional facility cited illegal and unreported use of restraint and exclusion of individuals with mental illness, limitations on patients’ access to medical care, and how solitary confinement and drugs as “chemical restraints” were used excessively [21]. According to the landmark decision in 1976 in Estelle v. Gamble, the Supreme Court held that “failure to provide adequate medical care to incarcerated people as a result of deliberate indifference violates the Eighth Amendment’s prohibition against cruel and unusual punishment,” ensuring a constitutional right to correctional health care [22]. It is blatantly legally unjust to enact a prison organ donation program to help people receive the gift of life when the state is failing to meet the basic healthcare rights of those incarcerated, violating the Eighth Amendment of the Constitution. It is egregious to propose Bill H.2333 when Wellpath, a company responsible for using chemical restraints unnecessarily, would be responsible for facilitating transplant operations and recovery care, underscoring how people in MA prisons have no reason to expect that after a major organ donation operation that their health and protection would be adequately provided for under the standards set by Estelle v. Gamble. This lack of care raises serious concerns for the recipient as well since the health of the donor is strongly connected to the success of the transplant.
Moreover, making prison organ donation a transactional relationship with the prevalence of such chronic diseases could raise issues of discrimination against those who are deemed medically unfit to donate if donation “would exclusively qualify for the reduction in sentence.”[23] Why should those who are medically unfit for organ donation be deprived of a shorter sentence? The possibility of medical discrimination also accentuates how this exchange system would be an ineffective decarceration strategy since it ignores Massachusetts’s aging prison population and the greater prevalence of chronic health issues in aging populations, as people incarcerated in Massachusetts are older than the national average, leading to fewer sentence reductions [24]. Policymakers should not be asking themselves simply where to find more donors but should be advocating for investments in healthcare, high-quality education, affordable housing, and employment to address why specific racial groups are more prone to chronic diseases requiring organ transplants in the first place and to reduce racial inequities. For instance, Massachusetts representatives should turn their attention to current Bill H.1227, an act to reduce racial and ethnic health disparities through commercial rate equity for safety net hospitals, which would promote “health equity for certain acute care hospitals that predominantly serve communities that experience health disparities as a result of race, ethnicity, and socioeconomic status.” Massachusetts legislators also have an obligation to take immediate action to end the contract with Wellpath and ensure that incarcerated people are provided with the medical care they need and basic human rights, not further discrimination and injustice.
Ultimately, Bill H.2333 is a legally impermissible piece of legislation that relieves Massachusetts legislators of the responsibility of addressing the root causes of mass incarceration and the organ shortage of the failure of the healthcare and criminal justice systems. Legislators need to stop trying to enact silver-bullet solutions by exploiting incarcerated people and start asking the right questions such as: why are so many people of color disproportionately likely to need organ transplants and how can healthcare reforms like Bill H.1227 tackle persisting racial inequities in medical care? It is unacceptable that people in prisons do not have proper access to the basic human right of health care, and legislators’ immediate focus should be to abolish the contract with Wellpath. Instead of subjecting highly vulnerable human beings to unethical commodification and perpetuating society’s view of people in prison as those who are far-gone and inessential, Massachusetts has an opportunity to transform existing detrimental institutions and influence positive social change in the criminal justice and health spheres and beyond.
Bibliography
LeBlanc, Steve. “Organs in Exchange for Freedom? Bill Raises Ethical Concerns.” AP News, February 8, 2023. https://apnews.com/article/organ-donation-massachusetts-state-government-health-a11a7f93dd13ad018bbb1899dbb4623a.
“Massachusetts.” Vera Institute of Justice. February 14, 2023. https://trends.vera.org/state/ma/.
LeBlanc, Steve. “Organs in Exchange for Freedom? Bill Raises Ethical Concerns.” AP News, February 8, 2023. https://apnews.com/article/organ-donation-massachusetts-state-government-health-a11a7f93dd13ad018bbb1899dbb4623a.
Ibid.
Ibid.
Fenne, Michael. “Private Equity Firms Rebrand Prison Healthcare Companies, But Care Issues Continue.” Private Equity Stakeholder Project. November 2022. https://pestakeholder.org/wp-content/uploads/2022/11/Wellpath_HIG_2022v2.pdf.
Andorno, Roberto. “Buying and Selling Organs: Issues of Commodification, Exploitation and Human Dignity.” Journal of Trafficking and Human Exploitation 1, no. 2 (December 31, 2017): 119–27. https://doi.org/10.7590/245227717X15090911046502.
Ibid.
“The Ethics of Organ Donation from Condemned Prisoners.” Organ Procurement and Transplantation Network. Accessed 5 November 2023. https://optn.transplant.hrsa.gov/professionals/by-topic/ethical-considerations/the-ethics-of-organ-donation-from-condemned-prisoners/.
LeBlanc, Steve. “Organs in Exchange for Freedom? Bill Raises Ethical Concerns.” AP News, February 8, 2023. https://apnews.com/article/organ-donation-massachusetts-state-government-health-a11a7f93dd13ad018bbb1899dbb4623a.
McCarthy, Colleen M. “Experimentation on Prisoners: The Inadequacy of Voluntary Consent.” New England Journal on Criminal and Civil Confinement 15, no. 1. (1989): 55-81. HeinOnline Law Journal Library.
“Financial Incentives for Organ Donation.” Organ Procurement and Transplantation Network, Organ Procurement and Transplantation Network. Accessed November 5, 2023. https://optn.transplant.hrsa.gov/professionals/by-topic/ethical-considerations/financial-incentives-for-organ-donation/.
McCarthy, Colleen M. “Experimentation on Prisoners: The Inadequacy of Voluntary Consent.” New England Journal on Criminal and Civil Confinement 15, no. 1. (1989): 55-81. HeinOnline Law Journal Library.
“Financial Incentives for Organ Donation.” Organ Procurement and Transplantation Network, Organ Procurement and Transplantation Network. Accessed November 5, 2023. https://optn.transplant.hrsa.gov/professionals/by-topic/ethical-considerations/financial-incentives-for-organ-donation/.
McCarthy, Colleen M. “Experimentation on Prisoners: The Inadequacy of Voluntary Consent.” New England Journal on Criminal and Civil Confinement 15, no. 1. (1989): 55-81. HeinOnline Law Journal Library.
McKim, Jenifer B. “They’ve Been Granted Parole. So Why Can It Take Years for Them to Get out of Prison?” HLS Clinical and Pro Bono Programs. July 14, 2020. https://clinics.law.harvard.edu/blog/2020/07/theyve-been-granted-parole-so-why-can-it-take-years-for-them-to-get-out-of-prison/.
Ibid.
Ibid.
Wang, Leah. “Chronic Punishment: The Unmet Health Needs of People in State Prisons.” Prison Policy Initiative. June 2022. https://www.prisonpolicy.org/reports/chronicpunishment.html.
Fenne, Michael. “Private Equity Firms Rebrand Prison Healthcare Companies, But Care Issues Continue.” Private Equity Stakeholder Project. November 2022.
“Public Report: Efficacy of Service Delivery Forms at Bridgewater State Hospital (BSH) and Continuity of Care for BSH Persons Served.” Disability Law Center. January 2022. https://www.dlc-ma.org/wp-content/uploads/2022/02/DLC-BSH-January-2022-Public-Report-2.9.2022.pdf.
“Health Care in U.S. Correctional Facilities — A Limited and Threatened Constitutional Right | NEJM,” accessed November 14, 2023, https://www.nejm.org/doi/full/10.1056/NEJMms2211252.
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“Prison Population Trends 2018.” Massachusetts Department of Corrections. March 2019. https://www.mass.gov/doc/prison-population-trends-2018/download.