As thousands of residents sit on an organ donor waiting list, some Massachusetts legislators are touting a controversial remedy: Offer those in state prisons a chance to shave months, maybe a year, off their sentence in exchange for donating an organ or bone marrow.
The program would “restore bodily autonomy” for those incarcerated, said Representative Judith García, one of its sponsors. Expanding the pool of donors, another said, could “extend the chances of life.”
Critics contend it’s something darker: perverse, exploitative. It may even violate federal law.
The legislative proposal has opened a debate about not only how to address a widespread shortage of available organs for those in desperate need, but what the moral and legal limits are for doing so.
Medical ethicists contend the program, as proposed, would put a literal price on freedom, and even while voluntary, would prove inherently coercive in practice. “It’s a quid pro quo,” said George Annas, chair of the department of health law, bioethics, and human rights at Boston University’s School of Public Health. “That’s what makes it problematic.”
Under the bill, those incarcerated could shave anywhere from 60 days to a year off their sentence if they have donated bone marrow or an organ.
A newly established committee, led by the commissioner of the Department of Correction or his or her designee, would oversee the voluntary program, and would be responsible for creating a range of standards. That would include the “amount of bone marrow and organ(s) donated to earn one’s sentence to be commuted.”
The potential alone unsettled some advocates, who questioned whether the state’s prison system — which federal investigators recently said struggled to provide adequate mental health care — could meet the medical needs of donors facing a long, and likely, difficult recovery.
“It’s like you’re harvesting organs. It just doesn’t feel right. It doesn’t feel humane,” said Romilda Pereira, the founder of Project Turnaround, which works with those who were formerly incarcerated. “You’re bargaining with vulnerable people over their time.”
State Representative Carlos González, one of the bill’s primary sponsors, rejected that that’s the intent. “It’s far from the truth,” the Springfield Democrat. “I’ve been a strong advocate for inmate reforms and rights.”
But while no law prohibits those who are incarcerated from donating an organ, he said they are provided no education or guidance on how to do so. González also indicated he’s open to dropping the provision to reward an inmate with time served.
“If we implement a program . . . and there’s no reduction in sentencing, so be it,” he said. “But why not make it accessible through an educational and informational committee? That’s where the crux of this legislation should be.”
González said the bill’s goal of “broadening the pool of potential donors” could help relatives of those incarcerated. People of color, he said, are less likely to find a match for a bone marrow transplant than white people, and those seeking transplants are disproportionately people of color.
Of the more than 4,600 Massachusetts residents currently on a transplant wait list, 28 percent are Black, Hispanic, or Latino. By contrast, those racial groups make up 22 percent of the state’s population, according to federal data.
An even greater imbalance exists in the state prison population, where as of last year Black and Latino people accounted for 54 percent of the population.
García, a Chelsea Democrat and the bill’s other co-sponsor, wrote in a tweet that there is “currently no path” for someone who is incarcerated in Massachusetts to donate an organ or bone marrow, even to relatives.
But state officials deny that. While it has no official policy, a spokesman for the Department of Correction said it has processed requests to donate an organ, most recently in the early 2000s. Department officials on Tuesday did not provide details of that case, other than to say someone incarcerated in a state prison was approved to donate an organ to “a loved one.”
Still, the prospect of expanding the donor pool by incentivizing those in state prisons disturbed several in the public health and legal advocacy fields.
Monik Jiménez, an epidemiologist at Brigham and Women’s Hospital whose work focuses on racial and ethnic inequities among incarcerated people, said when she first saw the bill, she thought she was reading something pulled from last century.
“I was floored,” she said. “As a Latina myself, to have two people of color using this as an excuse to address inequities of health in the community, I find it incredibly offensive.
“There are certainly ways we can engage our free communities in educating them about the options of organ and bone marrow donation,” she said. “But going to our incarcerated population as a source is problematic, at best, and exploitative. . . . ‘We’ll give you a year in exchange for an organ.’ I find that perverse.”
Others fear the program itself would be riddled with inequities. While complications after a kidney donation are rare, some procedures are potentially lethal, making an exchange of time for an organ a fraught proposition, said Robert Truog, the director of the Harvard Center for Bioethics.
Truog used an example of someone agreeing to donate a part of their lung for slicing several months for their sentence. “That,” he said, “is a stupid deal. You can die.”
The debate over whether to allow those incarcerated to donate organs has emerged before. In 2013, Utah became the first state to permit those serving in the general prison population — not those on death row — to donate their organs if they die while incarcerated. In 2007, South Carolina state legislators weighed a bill similar to the one now in Massachusetts to allow those in prison to donate organs or bone marrow in exchange for up to 180 days off their sentence.
Both then, and now, there are questions of whether such a bill would conflict with federal statute.
Federal law prohibits the sale of human organs or acquiring one for “valuable consideration,” be it money, vacations, or property. Brendan Parent, the director of the transplant ethics and policy group at New York University, said there’s a “very strong argument” that a reduced sentence would qualify as something of value.
“Those who choose to give an organ do so to try to save someone’s life, not to commodify a body,” Parent said. “It’s a great thing to try to find ways to get people out of prison who shouldn’t be there. But that the option is to take on this risk of donating an organ or bone marrow is pretty coercive.”
There are also other ways to expand the availability of organs for the nearly 105,000 people who are on the wait list across the country, Parent said, from improving how they’re transported to the process of recovering them after a person dies. A Massachusetts task force also recommended in 2021 that the state change its policy to assume everyone is a donor unless they specifically opt out of the organ donation list.
But to turn to the state’s prison population to help expand the organ surprised even legislative leaders. Asked about the proposal Wednesday, House Speaker Ronald Mariano raised an eyebrow.
“Some of these guys would give their legs to get out,” the Quincy Democrat. “It’s kind of an extreme way to get your sentence reduced. I don’t know if it makes much sense.”
Matt Stout can be reached at firstname.lastname@example.org. Follow him on Twitter @mattpstout.