The Use of Prisoners as Sources of Organs-An Ethically Dubious Practice

Abstract

The movement to try to close the ever-widening gap between demand and supply of organs has recently arrived at the prison gate. While there is enthusiasm for using executed prisoners as sources of organs, there are both practical barriers and moral concerns that make it unlikely that proposals to use prisoners will or should gain traction. Prisoners are generally not healthy enough to be a safe source of organs, execution makes the procurement of viable organs difficult, and organ donation post-execution ties the medical profession too closely to the act of execution.

Full text

The American Journal of Bioethics, 11(10): 1–5, 2011
Copyright c
Taylor & Francis Group, LLC
ISSN: 1526-5161 print / 1536-0075 online
DOI: 10.1080/15265161.2011.607397
Target Article
The Use of Prisoners as Sources of
Organs–An Ethically Dubious Practice
Arthur Caplan, University of Pennsylvania
The movement to try to close the ever-widening gap between demand and supply of organs has recently arrived at the prison gate. While there is enthusiasmfor
using executed prisoners as sources of organs, there are both practical barriers and moral concerns that make it unlikely that proposals to use prisoners will or should
gain traction. Prisoners are generally not healthy enough to be a safe source of organs, execution makes the procurement of viable organs difficult, and organ donation
post-execution ties the medical profession too closely to the act of execution.
Keywords: cadaver donation, compensation for donation, organ donation, prisoners, redemption, retribution
STRATEGIES FOR FINDING MORE ORGAN DONORS
The push to find more organs to transplant has led to
some very novel ideas. Some cities have decided to send
out specially equipped “donor” ambulances to follow reg-
ular ambulances. When someone dies outside of a hos-
pital and is pronounced dead by the first ambulance
team, a second team can be called in from the trailing
donor ambulance, try to get consent from any available
family member to attach the corpse to life support, and
then transport the body back to a place capable of car-
rying out procurement. Initially this strategy will only
be used when a newly dead person is known to be an
organ donor by an advance directive or other means,
but the plan is to eventually extend the effort to all
newly deceased persons who die outside a hospital, us-
ing surrogate consent (New York Organ Donor Network
2010). Still others have proposed routinely offering kid-
ney donation to anyone undergoing elective surgery (Testa
et al. 2009). And some procurement teams argue that
advance directives regarding termination of life support
should never interfere with the possibility of donation (De-
Vita and Caplan 2007).
The movement to try to close the ever-widening gap be-
tween demand and supply of organs by creative strategies
has recently arrived at the prison gate. While there is some
enthusiasm for using prisoners as sources of organs, there
are both practical barriers and moral concerns that make it
likely that the use of prisoners will not contribute in any
significant way to relieving the problem of organ shortage.
Calls for the Use of Organs From Executed Prisoners
There has been a renewed interest in the use of organs from
death-row inmates, as reflected in an editorial in the New
York Ti m e s written by a death-row inmate, Christian Longo
Address correspondence to Arthur Caplan, Department of Medical Ethics, University of Pennsylvania, 3401 Market Street, Philadelphia,
PA 19104-3308, USA. E-mail: caplan@mail.med.upenn.edu
(2011). He wrote that he was in prison in Oregon as a con-
sequence of having killed his wife and three children. He
said he had reached the point where he wished not to make
any further appeals of his conviction. What he hopes is that
after he is put to death he can donate his organs. But prison
authorities have rejected his request.
Longo says there are others on death row who want
to donate after execution. He has started a movement to
insure he and they have the chance to exercise what he
claims is his right to donate: “I am seeking nothing but the
right to determine what happens to my body once the state
has carried out its sentence” (Longo 2011).
Longo has attracted some support for his idea of us-
ing executed prisoners as sources of organs (Wood 2011).
Longo’s idea is not original. Efforts to obtain organs from
executed prisoners have attracted attention for many years
(Patton 1995; Bartz 2005).
Use of Living Prisoners as Organ Sources in Exchange
for Parole or Reduction in Sentence
In January 2011, Mississippi Governor Haley Barbour freed
two sisters from life sentences in jail for an $11 armed rob-
bery on the condition that one donate a kidney to the other.
Given the offer of parole, Gladys Scott agreed to be a donor
for her sister Jamie, who requires dialysis. Barbour was not
apparently convinced of the sisters’ innocence or merito-
rious conduct while serving their sentences in prison. He
said a key reason for his decision to order the sisters’ release
was that Jamie Scott’s kidney dialysis and treatment was a
financial burden on the state of Mississippi (Williams 2011).
In 2007 a state legislator in South Carolina proposed
a law to shorten prison sentences in exchange for kidney
or bone-marrow donation. State Senator Ralph Anderson
proposed bills that would release prisoners 60 days early
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for donating bone marrow and another that would give
good-behavior credit of up to 180 days to “any inmate
who performs a particularly meritorious or humanitarian
act,” which Anderson said would include living kidney
donation (O’Reilly 2007).
So, do either of these strategies to seek organs from
prisoners, dead or living, pass muster either practically or
ethically?
OBSTACLES TO CADAVER DONATION BY EXECUTED
PRISONERS: PRACTICAL AND MORAL
The Number of Potential Organ Donors Is Very Small
The practice of capital punishment remains ethically con-
troversial. A tiny minority of the world’s nations still retain
this form of punishment. Some countries that permit cap-
ital punishment have not executed any prisoner for many
years.
The majority of all executions in the world happen in
China, with approximately 5000 per year. Iran, with about
400 per year, is the second highest executioner. No other
countries regularly execute more than 100 people per year.
The only other countries that regularly execute more than
10 people per year are Iraq, Saudi Arabia, the United States,
and Yemen.
As of February 2011 there were 60 federal prison-
ers in the United States on death row (http://www.
deathpenaltyinfo.org/federal-death- row-prisoners). Since
the reinstatement of the federal death penalty in 1988, 68
defendants have been sentenced to death. Three have been
executed. Six had their death sentence removed.
Thirty-four states permit the death penalty for nonfed-
eral crimes. In 2010, there were 46 executions, down from
a peak of 98 in 1999. That number may well decline in the
future due to problems raised concerning the manner in
which executions are currently conducted.
Many challenges and appeals have been mounted in re-
cent years to execution, protesting the mode of execution
used as cruel. This has led to court-ordered stays of all ex-
ecutions in some states. Other states may abandon capital
punishment in light of difficulties in obtaining drugs that
courts deem necessary for humane execution (Belluck 2011).
So the pool of potential candidates may grow even smaller
in the future.
Not only are the numbers of potential donors small, but
many prisoners would not be eligible to serve as donors
due to age, ill health, obesity, or communicable disease.
The average time between sentencing and any execution is
10.6 years (Baltimore Sun 2011). This means that executed
prisoners are often in their fifties or older, greatly reduc-
ing their potential to serve as sources of organs. Inmates
engage in drug-related and sexual risk behaviors, and the
transmission of HIV, hepatitis, and sexually transmitted
diseases occurs at high rates in correctional facilities. The
prevalence of HIV and other infectious diseases, whether
acquired prior to or during imprisonment, is much higher
among inmates than among those in the general commu-
nity. The burden of disease among inmates is also dispro-
portionately high (Hammett 2006; Kuehn 2010). Those in
prison for long periods of time are more likely to become
infected with communicable diseases that would either dis-
qualify them as donors or make their organs a high risk for
recipients.
Even if one presumes the willingness of all those sen-
tenced to death in the United States to donate, the actual
number of executions diminishes the maximum pool of
possible donees to roughly 40 to 50 persons per year. That
number is declining. Presuming some of those on death row
would not be willing to be donors and that others would
be medically ineligible due to age or ill health, the use of
prisoners as cadaver organ donors cannot yield anything
more than a tiny number of organs for those in need.
Ethical opposition to capital punishment is strong and
further compromises proposals to use executed prisoners
as sources.
Efforts to abolish capital punishment remain vigorous in
the United States and around the world. In the United States,
fears of false conviction reinforce efforts to do away with
the death penalty. The Innocence Project reports 267 post-
conviction exonerations in the United States using DNA
evidence since 1989. Of these, 17 were prisoners on death
row (http://www.innocenceproject.org/Content/Facts on
PostConviction DNA Exonerations.php).
Critics of the practice may see linking organ procure-
ment to execution as increasing the image or social accept-
ability of capital punishment. The introduction of organ
procurement into executions also raises concerns that pros-
ecutors, judges, or juries may be more likely to insist on the
death penalty, knowing that lives might be saved.
Opponents of the use of executed prisoners are likely
to be very concerned about the impact of legalization in
the United States on other nations, since such a move may
make it more difficult to condemn controversial interna-
tional practices involving the execution of persons in order
to obtain their organs. Allegations persist of the involun-
tary and brutal execution and then immediate harvesting of
“prisoners” in China (Matas and Kilgour 2010).
Some of those executed may have been imprisoned for
religious or political activities (Matas and Kilgour 2010).
Any legitimation of the use of executed prisoners in the
United States may make it more difficult to protest cruel
and unjust execution practices in other nations.
Yet another moral problem confronting the use of exe-
cuted prisoners is the role that physicians and health care
workers ought play with respect to executions (Caplan
2007). Many maintain that physicians should play no role
whatsoever in the process, and some include in this even
the pronouncement of death at an execution. This is the
position of many national medical associations (American
College of Physicians [ACP] 1994; American Medical As-
sociation [AMA] 2010; World Medical Association [WMA]
2005). It is not clear whether the professional groups that
condemn physician or health care worker involvement with
executions would deem it ethical to be involved with organ
procurement after an execution has been completed. It is
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The Use of Prisoners as Sources of Organs
clear that they would not condone any change in the prac-
tice of execution in order to achieve procurement (ACP 1994;
AMA 2010; WMA 2005).
Putting aside the controversy over the morality of the
practice and the permissibility of health care workers in-
volvement with executions, the use of prisoners as cadaver
donors is made even more difficult by the complexity, practi-
cal and moral, of procurement in the setting of an execution.
Cadaver Donation Would Be Difficult to Achieve Using
Executed Prisoners
A large number of methods of execution including electro-
cution, hanging, and firing squad make organ procurement
impossible. However, nearly all executions in the United
States are by lethal injection.
Typically, three drugs are used in lethal injection:
sodium thiopental is used to induce unconsciousness;
pancuronium bromide (Pavulon) is used to cause muscle
paralysis and respiratory arrest; and these are followed by
potassium chloride to stop the heart. In the past 3 years, two
states have used a single-drug execution protocol using only
sodium thiopental. The only American company that made
this drug stopped manufacturing it due to its use in execu-
tions, leading to shortages that have delayed executions.
The primary obstacle to utilizing organs from executed
prisoners is that the prisoners do not die on life support.
This means that donation must be accomplished using
protocols developed from donation after cardiac determi-
nation of death without life support. Prisoners would be
treated as if they were controlled DCDD (donation after
cardiac determination of death) donors. This category
refers to patients in intensive care units with nonsurvivable
injuries who have treatment withdrawn and a transplant
team present to immediately try to retrieve organs after
monitored cardiac arrest has occurred.
Hearts cannot be used after a non-life-support death. If
the liver, kidneys, or lungs are felt to be suitable for trans-
plantation, the donor in a hospital setting is taken directly
to an operating room after cardiac arrest, and, after a wait-
ing period of up to 5 minutes depending on the protocol
in place at the hospital, a rapid retrieval operation is per-
formed. The outcomes for kidneys post DCDD procurement
seem comparable to those obtained from persons who die
on life support. Outcomes for livers and lungs are less cer-
tain.
Part of the problem in trying to carry out DCDD recov-
ery from executed prisoners is the extent to which the legal
and practical requirements of the execution would diminish
the likelihood of successful DCDD procurement. Executions
take place in prisons, not hospitals. Most executions involve
at least 10 to 15 minutes of examination prior to a final pro-
nouncement of death (http://www.txexecutions.org). If the
usual DCDD protocols involving additional waiting time
post death to insure death has occurred were to be applied
and if, since most prisons lack a facility where DCDD pro-
curement could safely be done, bodies will likely have to
be moved to another location, the time involved could well
make DCDD procurement impossible. Given these practical
challenges, it is likely that only kidneys may be safely used.
This scenario also presumes medical teams would be
willing to be involved in the requisite proceedings. The
ethics of involvement in monitoring a patient post execu-
tion, the use of interventions to preserve organs either prior
to, during, or right after the execution, and participating in
the movement of the body from the execution chamber to a
surgical suite raise issues of complicity with the execution
that may violate professional norms. Moreover, the number
of physicians and nurses willing to be publicly associated
with these activities, given that executions are witnessed
events, is likely to prove extraordinarily small. Potential re-
cipients may not be willing to accept organs from executed
prisoners, knowing the risks involved (Halpern et al. 2008),
or simply out of ethical concerns that they do not want
organs from a person executed for terrible crimes.
Could Organ Removal Be Used as the Mode of
Execution?
It might be possible to shift the location of executions into
hospitals or clinics in order to increase the chance of a suc-
cessful procurement of more organs. Prisoners might be
anesthetized and have their organs removed by a medical
team before they are dead. I have dubbed the notion of ex-
ecution by means of the removal of the heart or other vital
organs the “Mayan protocol” after the Mayan practice of
human sacrifice by removing a beating heart during cer-
tain religious rituals (Wood 2008). It is, however, morally
repugnant to involve physicians as executioners or to shift
the setting of punishment from prison to hospital. Involve-
ment in causing death in any way is a direct violation of
the “dead donor” rule, which has long been maintained as
a bright line between death and donation in order to insure
public trust and support for cadaver donation (DeVita and
Caplan 2007). This principle would even restrict efforts to
maximize the likelihood of procurement by the use of drugs
and cold perfusion as steps prior to execution.
Donation Undercuts the Morality of Execution
The point of capital punishment is to achieve retribution for
terrible crimes. It is also, proponents argue, a deterrent. If
either justification is to hold, then is organ donation likely
to be compatible with these reasons?
Retribution may be made far more difficult to achieve as
families and friends of victims watch as executed perpetra-
tors are lauded in their final days by possible recipients and
the media for their altruism in saving lives. Some may find
redemption acceptable (Wang and Wang 2010) if it saves
lives, but given the horrific nature of the crimes that lead to
execution, relatives and friends of victims are not likely to
be among them.
Consider Christian Longo, the prisoner behind the
movement to permit organ donation post-execution. What
were his specific crimes? He killed his wife MaryJane, 34,
and children Zachery, 4, Sadie, 3, and Madison, 2. Longo
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strangled MaryJane and Madison, stuffed their bodies in
suitcases, and threw them in a bay. Then he drove Zach-
ery and Sadie to a nearby bridge, tied rocks to their legs,
and tossed them into the water to drown. He said he did
it because his family was hindering his lifestyle. After the
murders he fled to Mexico, where he engaged in a variety
of cons and swindles until he was caught. In prison he has
made money by writing explicit sex letters to gay men, who
pay him for the raw prose (Smith 2011).
Longo now seeks redemption through being an organ
donor. If the moral basis for his execution is retribution
for his horrific acts, then how is any redemptive gesture
on his part consistent with the retributive intent of capital
execution (Hill 2009)?
Similarly,thedeterrenteffectofexecutionmaywaneif
social good is seen as issuing from the practice. While the
needs of those awaiting transplants are real, the aim of the
penal system is not to serve medical needs but to achieve
justice for those wronged and their families and friends,
as well as to deter future crimes. Mitigating the horror of
execution by permitting organ donation is not consistent
with the deterrent purpose of execution.
Giving the state a motivation to execute beyond
retribution or deterrence may be seen as inconsistent with
protecting prisoners’ rights. Creating the possibility of
organ donation may provide an incentive to prisoners or
their legal teams to prematurely abandon efforts to appeal
death-penalty decisions, particularly if prisoners believe
they may be able to expiate their crime and be remembered
in a positive manner as a result of donation.
Nor is it true, contrary to Longo’s claim (Longo 2011),
that being an organ donor is a right. Organ donation is a gift
that neither organ procurement agencies nor anyone else is
bound to accept. Even freed felons lose their right to vote, to
be a party in most lawsuits, to hold public office, and to bear
arms, and they suffer restrictions on travel overseas. Why
permit prisoners the chance to make posthumous gifts of
their bodies if their punishment is in part based on both ret-
ribution and their loss of standing within society (Hill 2009)?
The practical and ethical problems facing the use of ex-
ecuted prisoners as donors are overwhelming. Despite on-
going interest in their use, there is absolutely no possibility
of this strategy moving forward.
DONATIONS FROM LIVING PRISONERS
Practical Obstacles
In 2008 there were about one and a half million persons in
federal and state prisons and another 785,000 in local jails
in the United States at some point during the year (Sabol
2009). This large population might be available to provide
kidneys and perhaps portions of liver to those in need of
these types of transplants.
There are prisoners willing to consider donation, es-
pecially to family members. In the past a few prisoners
have done so. And prison officials in many states are
willing to consider these requests on a case-by-case basis
(http://www.tdcj.state.tx.us/policy/policy- home.htm).
The primary practical problem facing living prisoner
donation is the ill health and high rate of infectious disease
among prisoners (Hinkle 2002). In the case of the sisters
in Mississippi where the governor granted parole on con-
dition of sister-to-sister donation, no donation took place.
The would-be donor was too obese to be able to safely
donate. The risk factors for prisoners are significant enough
that they require special consent requirements to be used in
approaching potential recipients to inform them of the dan-
gers of accepting a kidney or lobe of liver from this source
(Singer et al. 2008; Halpern et al. 2008; Kucirka et al. 2009).
Ethical Concerns Over Use of Living Prisoners
The issue of living donation from prisoners is made morally
complex when various incentives or rewards such as pa-
role, reduction in sentence, or the extension of privileges
are associated with making an organ available. Federal
law prohibits making organs available for “valuable
consideration” (NOTA 1984). Arguably, giving a prisoner
parole or a reduction in sentence on condition of giving a
kidney to another is a form of valuable compensation. That
is how various national (UNOS [United Network for Organ
Sharing] Ethics Committee 2009) and international groups
(Zhiyong 2007) interpret policies that reward prisoners
who give up organs for rewards.
In addition to worries about compensation, the question
of free choice clouds the issue of prisoner consent (WMA
2005). Many maintain that prisoners cannot consent freely,
given the nature of the environment in which they live. The
vulnerability of prisoners in terms of coercion and manip-
ulation is explicitly acknowledged in their categorization
as a special population for whom informed consent may be
compromised in regulations governing prisoner participa-
tion in research (National Institutes of Health [NIH] 2011).
The ability to comprehend the facts about donation and to
make a voluntary choice must be carefully weighed on a
case-by-case basis if voluntary consent is to remain a key
component for obtaining organs from all living persons.
In most programs for living donors a donor advocate is
appointed, a psychological assessment is undertaken, and
the donee is made aware that he or she may change his
or her mind about donation at any time prior to the actual
act. These steps would have to be in place for a vulnerable
population such as prisoners, and those carrying them out
ought not have a connection to the corrections system, to
minimize any possibility of coercion or manipulation.
The arguments against allowing prisoners to donate
organs—kidney, liver, or bone marrow—while alive are not
as persuasive as the practical and ethical issues raised by ca-
daver donation from executed prisoners. Still, as the case in
Mississippi shows, a decision to commute a sentence condi-
tioned on making an organ available for reasons of cost may
well backfire. A high degree of ill health among prisoners,
alongside issues around the acceptability of compensation,
and the problematic nature of consent by those who are
incarcerated make this practice one that needs to be care-
fully regulated and assessed on a case-by-case basis. Direct
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promises of reward will have to be replaced by a willing-
ness to consider generous acts as a part of parole decisions
without any guarantees. As such, while lives may be saved,
living prisoners are not likely to provide a significant source
of organs for those in need. 
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