The 'fraught' ethical questions behind bill to allow prisoners to give organs for reduced sentences

There is a well-documented shortage of organ donors across the U.S., as well as racial inequities and who ultimately receives a transplant. There's a new bill pending in the Massachusetts legislature that's trying to address that problem, but it's trying to do it in a way that has generated some controversy: By incentivizing state prisoners to donate bone marrow or organs in exchange for a reduction in their sentence. GBH legal analyst and Northeastern law professor Daniel Medwed joined Morning Edition co-hosts Paris Alston and Jeremy Siegel to discuss. This transcript has been lightly edited.

Jeremy Siegel: This has generated quite the response. A lot of people were sort of shocked by it by the contents of this bill. To begin with, tell us a bit about exactly what it would do, what it proposes to do.

Daniel Medwed: The general idea is that prisoners could cut off a portion of their sentence, anywhere from two months to a year, by donating bone marrow or organs. The specific details are somewhat sparse. The bill is only 30 lines long, it's very short, but it would propose the establishment of a new committee chaired by the Department of Corrections to oversee the program and establish standards for its operation. All costs associated with the donation procedure would be borne by benefiting organizations, not by the Department of Corrections. So on the one hand, the goal here is obvious and pretty noble: To incentivize prisoners to help fill this gap on the organ transplant waitlist. On the other hand, the means of going about it strikes me and many others as deeply flawed, and gives rise to a range of legal, ethical and moral objections.

Paris Alston: And Daniel, I understand this isn't the first time that this has happened, right? There have been efforts in other states to do this. But let's talk a little bit about those legal grounds for opposition. What are they?

Medwed: A few of them come to mind. The first one is that while there isn't a state law on the books that would explicitly forbid this program, there is a federal statute that bans the purchase or sale of organs for a 'valuable consideration.' Now that term, valuable consideration, is commonly understood to encompass money, property or any other tangible benefit. So I think there's a pretty good argument that a sentence reduction qualifies as a tangible benefit. It may be an indirect one, it's not a direct monetary or proprietary interest; but it certainly provides something that's tangible and beneficial to the prisoner.

Second, the whole concept of informed consent in law and medicine presupposes not only that a patient is aware of the risks and benefits of a procedure before agreeing to undergo it, but also that the patient has rendered a decision that's voluntary. Here, dangling the carrot of freedom in exchange for the stick of organ extraction strikes many people as so inherently coercive, so fundamentally full of duress, that it could lead to a situation where any decision to participate is fundamentally involuntary.

Even putting aside coercion, you add to the mix some of the potential mental health issues that could be animating these decisions — the Department of Corrections has gotten into some hot water for having deficient mental health services. So let's say that there's someone who is actually agreeing to participate in this program, but it's being driven by some underlying, undiagnosed, untreated mental health condition. And it's undiagnosed and untreated because of substandard practices in the Department of Corrections. So there are so many legal and moral and ethical issues here.

Siegel: On one hand, you said that there is not an explicit law on the books about this. On the other hand, there are so many legal criticisms of something like this. Let's say it did end up passing, it overcame legal and political challenges, managed to be passed. Down the road, could you see other legal challenges popping up with it?

Medwed: Absolutely. Even if this passes, I could envision a number of downstream legal challenges, attacks on the manner of calculating the precise sentence reduction in exchange for a particular donation. I could also see a rise in personal injury actions. In particular, I would anticipate medical malpractice actions soaring, say, prisoners who are challenging the level of post-operative care in the custody of the Department of Corrections. Medical malpractice actions by incarcerated individuals are governed by a very complicated law, Chapter 258 of our General Laws, that has lots of procedural twists and turns. So we're looking at a lot of vexing civil litigation clogging up our courts if in fact, this goes through.

Alston: A lot of legal obstacles to consider there. So, Daniel, I mentioned earlier that this isn't the first time that a state has tried to do this. How did it work out in other places?

Medwed: Yes, well, about 15 years ago, in 2007, if I recall, a similar bill was proposed in South Carolina. In fact, the language was very, very analogous to the one that's pending here in Massachusetts. After it came out of a state senate subcommittee, it stalled on the floor. It never got through the state senate in South Carolina, apparently, according to reports, because of concerns about whether the law would violate that federal statute we discussed a moment ago that bans the purchase or sale of organs for a valuable consideration.

Siegel: So given all of the problems that you've discussed that you've raised here, do you see anything redeeming or positive about this? I mean, you did mention sort of the noble intentions by it. So, you know, on one hand, it sounds really shocking. Paris and I were talking off air, it almost sounds like the set up for a dystopian short story or something. But on the other hand, you have to imagine that if someone's introducing a bill, they have reason behind it, aside from shocking people.

Medwed: Well, absolutely. So I think the silver lining here is that it is sparking a conversation. Look, we're talking about it on air, sparking a much-needed conversation about the length of the organ transplant wait list and racial inequities and who gets a donation and the pool of the donor base. I think there are about 4,600 people on the waitlist in Massachusetts, and 28% of them are Black or Latinx people. And in fact, the two sponsors of this bill are Latinx representatives from Springfield and Chelsea, if I recall. And their goal really is to bring attention to the issue of racial inequities in this process. So the goal is pretty noble. It's just the mechanism that's being designed to achieve that goal is fraught with legal, ethical and moral problems.