The shortage of organs suitable for
transplantation has accurately been described as
a crisis. As of early April, there were reportedly
103,913 people waiting for an organ transplant
in the U.S., 88,661 of whom were seeking a
kidney transplant in particular.1
Those who
wait often depend on costly and inconvenient
medical procedures such as dialysis that can
significantly impede patients’ quality of
life. Inequities also persist in access to organ
transplants that result in disproportionate
impacts upon low-income communities and
communities of color.2
Increasing the supply of
available organs thus continues to be a critical
health care issue that requires creative strategies.
While such strategies will in part depend on
promoting greater participation in postmortem
organ donation programs, they will also require
mobilizing an expanded number of living
donors.
The Catholic Church has offered cautious
support for living organ donations. As the
procedure first became a possibility in the mid-twentieth century, many Catholic moralists
were resistant to endorse living donations due
to the Church’s long-standing prohibition
against mutilation.3
While the principle of
totality can be employed to justify surgical
procedures that promote the holistic wellbeing of the individual patient, theologians like
Gerald Kelly insisted that the principle could
not be used to justify surgical procedures that
promote the wellbeing of another patient.4
Instead, following the reasoning of Bert
Cunningham, the practice came to be justified
through the principle of charity. In their
willingness to sacrifice a part of their body for
the wellbeing of another, the donor imitates
the sacrificial love of Christ.5
Pope John Paul
II affirms that the logic of charity is necessarily
at work in all morally legitimate organ
transplants. He understands organ donation
as “a decision to offer, without reward, a part
of one’s own body for the health and wellbeing of another person” and he maintains
that “love, communion, solidarity and absolute
respect for the dignity of the human person
constitute the only legitimate context of organ
transplantation.”6
The pope’s words indicate
that any motivation to donate that is rooted
in personal gain instead of love of neighbor
is fundamentally immoral. At the same time,
John Paul II also suggests that the charitable
impulse alone is not sufficient grounds on
which to justify organ donations. He insists
that “a person can only donate that of which he
can deprive himself without serious danger or
harm to his own life or personal identity, and
for a just and proportionate reason.”7
While
people may wish to donate a part of themselves
to help another, they must never do so when they put themselves at risk of serious harm.
A controversial bill recently proposed by
Massachusetts lawmakers seeks to provide
another strategy for addressing the organ
shortage crisis, but in a way that falls short of
Catholic values and wider bioethical principles.
Sponsored by Democratic Representatives
Carlos González and Judith A. Garcia, the bill
would establish a Bone Marrow and Organ
Donation Program within the Massachusetts
Department of Corrections, empower a
committee to oversee the program, and
incentivize organ donation among incarcerated
individuals by reducing sentences by sixty
days to one year.8
While the bill faced almost
immediate criticism from prisoners’ rights
advocates, the sponsors contend that the policy
could significantly help to alleviate the shortage,
and they even frame it as a racial justice issue.
Since Black and Hispanic communities endure
disproportionate rates of diabetes, heart disease,
and other chronic conditions, the sponsors
reason that an increased organ supply would
ultimately support these communities.9
The most controversial part of the bill is
undoubtedly the incentive it offers in the
form of a sentence reduction. At the legal
level, the bill may violate Section 301 of the
National Organ Transplant Act (NOTA),
which prohibits “the transfer [of] any
human organ for valuable consideration
for use in human transplantation.”10 Legal
scholar Jamila Jefferson-Jones notes that
what constitutes “valuable consideration” is
not concretely defined in the law, but in its
current form, monetary incentives as well as
college scholarships, housing, and payment
of household bills are all prohibited.11 South
Carolina ultimately failed to pass a similar “organ-for-liberty” bill in 2007, because
lawmakers feared it might violate Section 301
of NOTA.12
At the bioethical level, the bill has also sparked
debate. Critics of the bill insist that the
reduction in sentence constitutes an undue
inducement, an incentive so attractive that it
prevents prospective donors from adequately
considering the risks involved and would thus
undermine their ability to make a decision
rooted in informed consent.13 Beyond
the coercive threat to patient autonomy,
the incentive also runs afoul of Catholic
anthropological claims. In Donum vitae, the
Congregation for the Doctrine of the Faith
(CDF) affirms “the unified totality” of the
human person. The CDF insists that because
of its substantial union with the soul, “the
human body cannot be considered as a mere
complex of tissues, organs and functions…
rather it is a constitutive part of the person who
manifests and expresses himself [sic] through
it.”14 From this firmly held claim, Pope John
Paul II deduced that the reduction of human
organs to objects of trade or exchange is a clear
violation of human dignity. He attests that
organ donation “is not just a matter of giving
away something that belongs to us but of giving
something of ourselves.”15 The commodification
of any part of the body contradicts the Catholic
vision of the person, and thus from a Catholic
point of view, incarcerated individuals do not
have the right to exchange their kidneys for
liberty.
In response to pressure from critics, the
sponsors of the bill have expressed their
openness to amend the bill by stripping it of
any sense of quid pro quo. Representative
Gonzales indicated that the intended purpose of the bill has always been to provide a pathway
for incarcerated people to donate their organs
if they freely choose to do so.16 Insofar as
lawmakers amend the bill so that fears of undue
inducement and commodification of organs are
assuaged, would it not be morally acceptable to
support an initiative that enables incarcerated
people to freely donate parts of their body to
support the flourishing of loved ones or even
strangers in need of organ transplants?
Some bioethicists have suggested that
incarcerated people should be precluded from
donating organs even for altruistic reasons.
When it comes to those condemned to death,
Arthur Caplan suggests that organ donation
may be immoral because it could undercut
the retributive purpose of punishment. In his
understanding of retribution, Caplan implicitly
suggests that those who commit horrific
crimes ought to completely lose their standing
in society. He fears that if such individuals
are able to donate their organs, they would
gain some degree of sympathy or praise from
the public for their altruistic actions and risk
upsetting the victim’s loved ones.17 While
Caplan is right to prioritize the victim’s loved
ones in his argument, it is difficult to imagine
that the majority of the public would be willing
to overlook an individual’s brutal crimes
because they donated their organs.
Moreover, his vision of punishment stands
at odds with Catholic convictions about
human dignity. Caplan seems to indicate
that incarcerated people (specifically those
facing the death penalty) lose their humanity
and become irredeemable non-persons. This
position is completely incompatible with
Catholic anthropology. The U.S. bishops
affirm that every individual is made in the image and likeness of God and therefore
possesses an inviolable human dignity. This
dignity is “not something we earn by our good
behavior; it is something we have as children
of God.” Furthermore, they attest that God’s
grace “can transform even the most hardened
and cruel human beings.”18 Policies that
prevent incarcerated people from positively
contributing to and deepening their solidarity
with the larger human community should
therefore be avoided. No human being should
be hindered from growing in the practice of
love.
While incarcerated people should not
be prevented from donating organs for
punitive reasons, it may be prudent to avoid
implementing living donation policies due
to the inadequate health care available in
Massachusetts prisons. Through the 1976
Supreme Court ruling in Estelle v. Gamble,
incarcerated people ironically became the
only constituency in the United States that
possesses a constitutionally guaranteed right
to health care. The mandate to care, however,
is frustratingly thin; the ruling only protects
incarcerated people from cruel and unusual
punishment that comes in the form of the
withholding of medical treatment for serious
conditions.19
Despite this mandate and despite the fact that
the health of the incarcerated is significantly
worse than the health of the general population,
medical neglect is rampant in U.S. prisons.
The abolitionist coalition Deeper Than Water
has helped to shed light on the pervasive
neglect in correctional facilities throughout
Massachusetts. The Massachusetts Department
of Corrections has contracted with Wellpath,
a for-profit health care company that has been sued at least 1,395 times between 2008
and 2018 and has left prisons throughout the
commonwealth significantly understaffed.20 At
MCI-Norfolk, for example, when the medical
director recently stepped down, the prison
was left with only two nurse practitioners to
manage care for 1,100 people.21 The company’s
cost-saving policies have resulted in needless
suffering and preventable deaths throughout
the commonwealth’s prison system. The
immunocompromised patient Ziggy Lemanski
filed several sick slips for flu-like symptoms,
but delays in treatment meant that he died
of pneumonia at age 44. Michael Ramsey
was diagnosed with atypical migraines and
ordered to see a neurologist within a week,
but the appointment was never scheduled
and clinicians determined him simply to be
“med-seeking.” When nurses found him in
his cell a month later unable to walk, he was
quickly hospitalized and shortly died from
cryptococcal meningitis at age 36. After an
abrupt withdrawal from his prescription drugs,
Paul Bulthouse suffered fifteen seizures that
were ignored by staff before he died shortly later
at 39.22
These are just a few of the stories that Deeper
Than Water has documented. In a survey
conducted with a sample of 141 incarcerated
respondents, the coalition found that 79%
reported that their obvious medical conditions
were ignored. Among those with documented
health care needs, only 25% found that their
treatment plan was followed by staff. Over 80%
reported having to wait a long period of time
for treatment for a known condition, a trend
that the Office of the State Auditor observed
in Massachusetts prisons before contracting
with Wellpath.23 Besides medical neglect,
respondents commonly reported conditions inhospitable to health, including insufficient
access to food, unsanitary food services, and
polluted water.24 Until recently, MCI-Norfolk’s
polluted drinking water was the object of
serious public scrutiny for its dark color, bad
smell, and high levels of manganese, a mineral
that can cause neurological disorders.25
In an environment characterized by medical
neglect and unhealthy living conditions, the
implementation of a living organ donation
program could be dangerous for incarcerated
individuals. While surgeries performed for
living donation are usually safe, there is little
indication that an altruistic donor would
receive the care they need in Massachusetts
prisons if complications arise. If provisions
were made to ensure expedited care for donors,
it would constitute special treatment in a
context where timely care is supposed to be
a right not a reward. The health conditions
in Massachusetts prisons reflect a flagrant
disregard for the dignity of the human beings
forced to live there, and as such, constitutes
an expression of what Pope Francis identifies
as “the throwaway culture.” His call for “the
improvement of prison conditions, out of
respect for the human dignity of persons
deprived of their freedom” must be heeded in
the commonwealth.26 While the supporters
of the bill commendably seek to address the
organ shortage crisis, which disproportionately
impacts vulnerable low-income and BIPOC
communities, it is an odd strategy to seek
solutions among incarcerated people, who are
disproportionately low-income and BIPOC
and endure high rates of chronic conditions
that make transplantation necessary.27 While
incarcerated people motivated by charity should
be allowed to donate their organs, justice
demands that such a policy must be preceded by the transformation of health care conditions
in Massachusetts prisons.
SHAUN SLUSARSKI, M.T.S
Boston College Department of Theology
Chestnut Hill, Massachusetts
[email protected]
ENDNOTES
- Organ Procurement and Transplantation Network, “Data,”
April 9, 2023 https://optn.transplant.hrsa.gov/data/
(accessed April 10, 2023).
- Christine Park, Mandisa-Maia Jones, Samantha Kaplan,
Felicitas L. Koller, Julius M. Wilder, L. Ebony Bouware,
and Lisa M. McElroy, “A scoping review of inequities
in access to organ transplant in the United States,”
International Journal for Equity in Health 21, no. 22
(2002): 1.
- Nicanor Pier Giorgio Austriaco, Biomedicine and
Beatitude: An Introduction to Catholic Bioethics
(Washington, D.C.: Catholic University of America Press,
2021), 264.
- Gerald Kelly, “The Principle of Totality….Part-for-thewhole,” The Linacre Quarterly 23, no. 3 (August 1956):
73
- Austriaco, 266.
- Pope John Paul II, “Address of His Holiness John
Paul II to the Participants of the First International
Congress of the Society for Organ Sharing,” June
20, 1991, §3. https://www.vatican.va/content/johnpaul-ii/en/speeches/1991/june/documents/hf_jpii_spe_19910620_trapianti.html.
- Ibid., §4.
- An Act to Establish the Massachusetts Incarcerated
Individual Bone Marrow and Organ Donation Program,
H.R. 3822, 193rd General Court of Massachusetts,
(January 20, 2023), https://malegislature.gov/
Bills/193/HD3822. The debate over whether or not to
allow incarcerated people to donate their organs is not
new. In 2007, South Carolina proposed a similar bill that
would have provided a six month sentence reduction for
incarcerated donors but was ultimately never enacted.
In 2011, Christian Longo, an Oregon man who was
sentenced to death for the murder of his wife and three
children, made a case in the pages of the New York
Times to be granted the right to donate his vital organs after his execution, but his sentence was ultimately
commuted to life without parole. In 2010, Mississippi
governor Haley Barbour indefinitely suspended the
double life sentences of sisters Gladys and Jamie Scott
on the grounds that Gladys donate one of her kidneys to
Jamie. It was eventually determined that neither sister
was healthy enough to perform the procedure, and while
the sisters were not re-incarcerated, the transplantation
never occurred. See Anne Pollock, “On the Suspended
Sentences of the Scott Sisters: Mass Incarceration,
Kidney Donation, and the Biopolitics of Race in the
United States,” Science, Technology, & Human Values
40, no. 2 (March 2015): 253-255.
- Quoted in Abby Patkin, “A Mass. bill would cut prison
time for organ donations. An advocate is calling the
measure ‘unethical and depraved,” Boston.com,
February 1, 2023. https://www.boston.com/news/
politics/2023/02/01/massachusetts-bill-prison-timebone-marrow-organ-donations/ (accessed April 10,
2023).
- National Organ Transplant Act of 1984, Pub. L. No. 98-
507, tit. 3, §301, 98 Stat. 2346 (codified as amended at
42 U.S.C. §274e (2006)).
- Jamila Jefferson-Jones, “The Exchange of Inmate Organs
for Liberty: Diminishing the ‘Yuck Factor’ in the Bioethics
Repugnance Debate,” The Journal of Gender, Race, &
Justice 16, no. 125 (2013): 114.
- Ibid.
- Judith Levine, “No, Trading Flesh for Prison Time Is Not
‘Bodily Autonomy,’” The Intercept, February 19, 2023.
https://theintercept.com/2023/02/19/organ-donorethics-prison-massachusetts/ (accessed April 10, 2023).
- The Congregation for the Doctrine of the Faith, Donum
vitae (Instruction on Respect for Human Life in Its Origin
and on the Dignity of Procreation), February 22, 1987,
§3. https://www.vatican.va/roman_curia/congregations/
cfaith/documents/rc_con_cfaith_doc_19870222_
respect-for-human-life_en.html.
- Pope John Paul II, “Address of the Holy Father
John Paul II to the 18th International Congress of
the Transplantation Society,” August 29, 2000,
§3. https://www.vatican.va/content/john-paul-ii/
en/speeches/2000/jul-sep/documents/hf_jp-ii_
spe_20000829_transplants.html.
- Ivan Pereira, “Massachusetts legislator walks back bill to
reduce sentences if inmates sign up for organ donation,”
ABC News, February 9, 2023. https://abcnews.go.com/
US/massachusetts-bill-allowing-prisoners-donate-organsreduced-time/story?id=96989325 (accessed April 10,
2023).
- Arthur Caplan, “The Use of Prisoners as Sources of
Organs - An Ethically Dubious Practice,” American
Journal of Bioethics 11, no. 10 (October 2011): 3-4.
- United States Conference of Catholic Bishops.
Responsibility, Rehabilitation, and Restoration: A
Catholic Perspective on Crime and Criminal Justice
(Washington, D.C.: United States Catholic Conference,
2000), 21.
- Jason Schnittker, Michael Massogia, and Christopher
Uggen, Prisons and Health in the Age of Mass
Incarceration (New York: Oxford University Press, 2022),
12.
- Ronald Leftwich, “End the Contract with Wellpath, Before
I go Blind,” #DeeperThanWater, October 20, 2021.
https://deeperthanwater.org/2021/10/20/wellpath/
(accessed April 12, 2023).
- James Keown, “BREAKING: MCI-Norfolk Medical Director
Out After Only Months,” #DeeperThanWater, March
22, 2023. https://deeperthanwater.org/2023/03/22/
breaking-mci-norfolk-medical-director-out-after-onlymonths/ (accessed April 12, 2023).
- “Medical neglect stories from inside: a compilation,”
#DeeperThanWater, April 27, 2022. https://
deeperthanwater.org/2022/04/27/medical-neglectstories-from-inside-a-compilation/ (accessed April 12,
2023).
- Office of the State Auditor, “Audit of the Massachusetts
Department of Corrections for the Period July 1, 2016
Through June 30, 2018,” January 20, 2020, https://
www.mass.gov/doc/audit-of-the-department-ofcorrection/download (accessed April 12, 2023).
- “Cancel MA DOC’s Wellpath Contract,”
#DeeperThanWater, September 9, 2022. https://
drive.google.com/file/d/1cxHKSDefTlsL1O74Gn2fzaZ4P1ojhWu/view (accessed April 12, 2023).
- Deborah Becker and Lynn Jolicoeur, “Drinking Water
Remains a Concern at Norfolk Prison in Mass.,”
WBUR, March 30, 2018. https://www.wbur.org/
news/2018/03/30/drinking-water-norfolk-prison
(accessed April 12, 2023).
- Pope Francis, Fratelli tutti, October 3, 2020, §267.
https://www.vatican.va/content/francesco/en/
encyclicals/documents/papa-francesco_20201003_
enciclica-fratelli-tutti.html.
- Johanna T. Crane, “Mass Incarceration and Health
Inequity in the United States,” in The Edinburgh
Companion to the Politics of American Health, edited
by Martin Halliwell and Sophie A. Jones (Edinburgh:
Edinburgh University Press, 2022: 513-515.