A new bill that would give Massachusetts prisoners an earlier release if they donate organs is mired in controversy as advocates raise concerns about ethics, and legislators urge understanding for their intentions.
It would allow people held in state prisons the ability to reduce their sentences between 60 days to a year, “on the condition that the incarcerated individual has donated bone marrow or organ(s)."
Prisoner advocates say that incarcerated individuals might feel pressured to trade their organs for free time. State Rep. Carlos González, one of the sponsors, told GBH News on Wednesday that is “far from the truth.” He said he has family members in prison, and is connected to a father of three hospitalized in a Massachusetts hospital suffering from stage-four kidney failure while waiting for a donor.
The idea, he said, is to broaden the pool of potential donors in an effective way to “increase the likelihood of Black and Latino family members and friends receiving life-saving treatment.” González, said this could benefit prisoners because it restores individual agency and decision-making.
“There is no law against prisoner organ donation,” he said. The committee in charge of proctoring the program, he said, would ensure the safety of every participant.
How it works
The legislation to “establish the Massachusetts incarcerated individual bone marrow and organ donation program” was filed by González of Springfield and Judith García of Chelsea in January. García didn’t respond to requests for comment, but posted on Twitterthe bill will “restore bodily autonomy to incarcerated folks by providing opportunity to donate organs and bone marrow” and “recognize incarcerated donors’ decisions by offering reduced sentence.”
A program for donations would be established within the Massachusetts Department of Correction, and be run by a committee of five people, which include DOC leadership, an organ donor specialist, and two people from the Massachusetts District Attorney’s Association and a prisoners’ rights group. It would create eligibility standards and proctor the program. Costs related to the donations would be covered by “benefiting institutions of the program."
González said legislators are open to expanding the number and breadth of people on the committee.
There is a process in place which permits prisoners to donate organs, according to the Department of Correction, but the agency couldn’t provide details on how prisoners can currently donate organs. An agency spokesman said the department doesn’t comment on pending legislation.
“This bill basically establishes a committee with advocates, with advocates of our inmate population to establish the parameters, the guidelines, the clarity, the transparency, on a policy that is lacking within the department of corrections today,” said González.
The ethical questions
While there’s no evidence that prisoners are seeking to donate organs in droves, there are instances. In 2011, a 37-year-old man on Oregon's death row sought to posthumously donate his organs. He was told that the drugs in executions destroy organs, and argued in a New York Times op-ed that isn’t the case.
In July 2022, a Texas prisoner on death row sought to delay his execution so he could make a kidney donation. Utah became the first state to allow organ donation in 2013, if they die while incarcerated. Federal prisoners are allowed to donate organs to family members. It is unclear how state prisoners in Massachusetts are able to.
The need is certainly there. There are about 4,000 people waiting for organs in Massachusetts, according to the Health Resources and Services Administration.
Groups are decidedly against prisoners getting free time in exchange for their organs, and worry they’re vulnerable to influence in that decision.
Prisoners Legal Services said it’s in touch with the bill sponsors. Litigation director Jim Pingeon said that many Massachusetts prisoners wouldn’t meet medical eligibility for organ donation.
“We’re cognizant of the significant problem of racial inequity in our health system that has left BIPOC communities disproportionately impacted by organ and marrow shortages,” said Pingeon. “However, we are concerned regarding the potential for coercion and impact of inadequate medical care in carceral settings.”
The solution he said, must target underlying “structural problems leading to health disparities.” Hispanic men and women have chronic liver disease at twice the rate of the white population, and they're almost twice as likely to die from chronic liver disease. Gonzalez said it's comorbidities like this that are known to put people of color at risk for organ failures.
He also said its explicitly against the law to offer any “valuable consideration” or reward for organ donation.
The idea of prisoners having the right kind of autonomy to be able to make that kind of decision while being behind bars is also part of the ethical argument.
“Here they’re clearly trying to incentivize people by offering them sort of reduced sentences. That has historically been a problem because you have people who are in a context where they have reduced freedoms overall,” said Takunda Matose, a bioethicist at Loyola University Chicago who has worked in incarceration settings.
“There’s a history of concerns about how just when these kinds of programs have previously been attempted sometimes that included, some of the financial incentives, which I know are not included in this proposal," he said.
Organizations like Black and Pink Massachusetts are vocally against the bill. “We were shocked to see particularly the incentivisation provision to install a harvest organ harvesting program in the Department of Corrections,” said Michael Cox, executive director. "You can't essentially let people sell their organs for freedom,” he said.
The ethical arm of United Network for Organ Sharing —which runs the nation's organ transplant system —said in 2014 that “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.”
González said that sponsors are open to having discussions on whether a sentence reduction is appropriate and changing the bill’s language.
“The narrative being put out there, organ harvesting, trafficking, is so far from the truth,” he said.
Matose had a list of recommendations, including improving medical care at prisons that lack it, broadening committee membership to be less focused on prison staff, and tracking the racial demographics of people who are donating, and people who are recipients, to ensure equity.
The root cause of the bill’s creation, stemming racial inequities of organ donation recipients, is essential to address. ““More than two out of three white people find a bone marrow match, whereas most people of color have less than a 50 percent chance of finding a match. Those who require transplants are disproportionately people of color,” González, said.
The bill does not have a hearing scheduled yet. House Speaker Ron Mariano, a Democrat, cast doubts on its progress on Wednesday.
"It's the first I've ever heard of it ... first reaction is that some of these guys would give their legs to get out,” he said. “I don't know, it's kind of an extreme way to get your sentence reduced. I don't know if it makes much sense."
Massachusetts could go the way of South Carolina. In 2007, lawmakers in there sought to reduce sentences by up to 180 days if a prisoner donated an organ. After blowback, the state created a voluntary organ and tissue donation program that allows prisoners to donate—without anything in exchange.
Katie Lannan contributed to this story.