Almost 5,000 Massachusetts residents are on the waiting list for a kidney, liver, or other organ that could be transplanted to save their lives. Believing it better to light one small candle than to curse the darkness, two Massachusetts legislators propose a modest reform that could bring some hope to patients with end-stage organ disease. Legislation filed by Representatives Carlos González of Springfield and Judith García of Chelsea would allow prison inmates to qualify for a reduction in their sentence by donating one of their organs or bone marrow. Their bill, HD.3822, imposes no mandate or penalty; it simply offers prisoners who become organ donors a chance to shorten their incarceration by up to 12 months.
The reaction to this proposal has been unhinged. Critics lambasted it as “incredibly offensive,” “coercive and disrespectful,” and “dystopian.” An “egregious violation of medical ethics,” seethed one commenter on Twitter. “Utterly disgusting and predatory,” railed another.
What explains such hostility? Partly it seems to be the idea that for prisoners, there is no meaningful distinction between incentive and duress — that an inducement to do a worthy thing is tantamount to a penalty for not doing it. “Can someone who is suffering in prison, and desperate to get out,” asks a skeptical writer in MIT Technology Review, “really give free and informed consent?”
But why should prisoners be thought incapable of deciding for themselves whether to become organ donors? Nothing in the bill would subject inmates to undue influence. On the contrary: The bill requires that someone designated by an organization “advocating for the rights of incarcerated individuals” be involved in supervising the program.
It takes months for anyone, in or out of prison, to qualify as an organ donor. The screening is very elaborate. It involves not only blood tests and physical checkups but also education, psychological evaluation, multiple confirmations of informed consent, and consultation with a social worker. Potential donors are repeatedly reminded that they can opt out. No one is rushed into donating an organ. There is nothing remotely “coercive and disrespectful” about the process.
But some of those pouring scorn on the legislators’ proposal have a different objection: They shudder at the prospect that anyone donating an organ might receive something in exchange. And that raises an issue that goes to the heart of America’s organ-donor system.
To address a critical shortage of lifesaving organs available for transplant, Congress in 1984 enacted the National Organ Transplant Act. The law, among other provisions, made it a crime to reward anyone with “valuable consideration” for agreeing to donate an organ. The result nearly 40 years later? An even more critical shortage of lifesaving organs available for transplant.
In decreeing that organ donors must be motivated by altruism alone, Congress meant well. It feared that offering financial incentives to potential donors might lead people to give up a kidney or a liver lobe in order to be compensated, rather than from the sheer goodness of their hearts. To be sure, Congress did not expect any of the other parties involved in an organ transplant — surgeons, hospitals, nurses, anesthesiologists, pharmacists, X-ray technicians — to provide their services for free. Only the person consenting to donate the crucial organ was required to forgo any reward.
Many donors, bless them, are glad to do so. But not nearly enough.
Approximately 105,000 Americans are currently on the waiting list for the kidney or other organ that could give them a new lease on life. Last year more than 42,000 organ transplants were performed. But that barely put a dent in the waiting list, to which another patient is added every 10 minutes — more than 50,000 per year. Meanwhile, 17 people on the list die each day, waiting for an organ that never came.
Congress ought to amend the 1984 law to allow financial incentives for organ donors, a reform that has drawn support from a number of scholars and is backed by public opinion. But in this matter, as in so many others, Congress is feckless to the point of paralysis.
All the more reason, then, for state policy makers to act. What González and García suggest might result in only a handful of additional transplants. But while the number of patients who would be helped is tiny, the benefit they would gain is immense — nothing less than life itself.
Those who recoil in horror from offering prisoners early release as an incentive to become an organ donor may be sincere. Surely, though, it is more abhorrent to let another human being die prematurely for no better reason than to keep a donor from being rewarded.