The State as Organ Master: Massachusetts Considers a Bill to Create a Limited Market for Prisoner Body Parts (Donations to "Earn" Sentence Reductions)

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It ha snow been widely reported that a bill has been introduced in the Massachusetts state legislature HD.3822, "would allow incarcerated people in Massachusetts to trade one precious commodity, donated organs, for another: Time." (A Mass. bill would cut prison time for organ donations. An advocate is calling the measure ‘unethical and depraved.’).

The bill was advanced on anti-racist and social justice grounds by State Rep. Carlos González, one of the legislators behind the bill.

González, a Springfield Democrat, noted that a number of comorbidities put people of color at risk for organ failure, pointing to higher risks of diabetes and heart disease among Hispanic and Black populations, and higher rates of chronic liver disease among Hispanic people. Broadening the pool of potential donors, he argues, is an effective way to increase the likelihood of those patients receiving critical care.

The bill would establish a bone marrow and organ donation program within the Massachusetts Department of Correction, to be administered by a committee that would include in its ranks MADOC representatives, a donation specialist, and an advocate for incarcerated individuals’ rights. Benefiting institutions would bear donation-related costs, and the Department of Correction wouldn’t profit from donations.

“We must provide every person who is incarcerated with the guidance of medical experts and advocates in order to ensure them the same rights and opportunities that every individual in Massachusetts has to save the life of their mother, father, brother, sister, child or friend,” González said. 

He added: “In my view, there is no compelling reason to bar inmates from this. One of our goals is to provide information and education on the disproportionate number of Blacks and Latinos dying while waiting for donors.” (A Mass. bill would cut prison time for organ donations.).

The road to potentially severe violations of human rights is sometimes paved with the best of intentions.  While it is not clear how that works out in this case there are a number of warning signs that do not augur well for the compatibility of the worthwhile goals with the potentially human rights breaching means. The prison environment is not necessarily conducive to free and fair consent. The potential for abuse given the relationship between the incarcerated and the state, may be significant--and corruption and abuse likely difficult (and expensive) to do well. The risk tolerance for abuse and error is likely low (how many mistakes are too much?). Connecting sentencing policy to donations  in a highly controlling environment suggests issues of capacity, coercion, and abuse.  The issue of the monetization of the body remains highly contested as a matter of law, morals, and ethics. It also touches on religious sensibilities--the results of which might also produce substantial claims for bias and burdening of religion by effectively imposing a penalty on those whose religious convictions preclude negotiating away rights to their bodies (assuming the discussion goes that far in the first place).  And so on., and social

There are alternatives:

1. Sensitively design a reward system that encourages donation from all citizens.

2. Ensure complete and honest and comprehensive counseling before donation

3. Protect for abuse or moral market failure (lie blood donations where prople trade their bodies for life's essentials)

It should be noted that the impulse here is not unique to Massachusetts.  It has been reported  that 

South Carolina state legislators debated a similar plan in 2007, but a discussion on lower penalties was postponed owing to worries about potential violations of federal law. . . . No state permits the donation of organs from executed prisoners, even if they are registered as organ donors. According to the United Network for Organ Sharing (UNOS), there are now 104,413 individuals awaiting an organ transplant in the United States, of which 58,970 are on an active waiting list. (Massachusetts Inmates May Get Reduced Sentence for Organ Donations)

The text of the Bill follows below.

 

Bill HD.3822

SECTION 1. Chapter 127 of the General Laws is hereby amended by adding the following text after the word “petition”:-

Section 170. (a) The Commissioner of the Department of Corrections shall establish a Bone Marrow and Organ Donation Program within the Department of Correction and a Bone Marrow and Organ Donation Committee. The Bone Marrow and Organ Donation Program shall allow eligible incarcerated individuals to gain not less than 60 and not more than 365 day reduction in the length of their committed sentence in Department of Corrections facilities, or House of Correction facilities if they are serving a Department of Correction sentence in a House of Corrections facility, on the condition that the incarcerated individual has donated bone marrow or organ(s). 

(b) The Bone Marrow and Organ Donation Committee shall consist of five members: The Commissioner of the Department of Correction or their designee who will act as chair of the committee; the Medical Director of the Department of Corrections or their designee; a Bone Marrow and Organ Donation Specialist from a hospital within the Commonwealth or their designee; a representative of an organization advocating for bone marrow donations within the Commonwealth or their designee; and two appointments shall be made by the Governor to serve three-year terms and one of whom shall be a board member of an advocacy group advocating for the rights of incarcerated individuals, and one of whom shall be from the Massachusetts District Attorney’s Association. The Bone Marrow and Organ Donation Committee shall be responsible for the effective implementation and ongoing administration of the incarcerated individual Bone Marrow and Organ Donation program. The Bone Marrow and Organ Donation Committee shall also be responsible for promulgating standards of eligibility for incarcerated individuals to participate and the amount of bone marrow and organ(s) donated to earn one’s sentence to be commuted. Annual reports including actual amounts of bone marrow and organ(s) donated, and the estimated life-savings associated with said donations, are to be filed with the Executive and Legislative branches of the Commonwealth. All costs associated with the Bone Marrow and Organ Donation Program will be done by the benefiting institutions of the program and their affiliates-not by the Department of Correction. There shall be no commissions or monetary payments to be made to the Department of Correction for bone marrow donated by incarcerated individuals.

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