PRISONERS AND ORGAN DONATION

Medicine and Health Rhode Island,  Dec 2005  by Baruch, Jay

• E-mail
• Print
• Link

The numbers are daunting. Over 79,000 patients in the United States await organ transplants; nearly 3000 new patients are added to the waiting list each month.1 Few people would argue that the current system of altruistic organ donation isn't meeting the demand.

There are over 2 million prisoners in US jails and prisons. Mining that community as potential donors might appear to be a goldmine. And there might be added incentive if prisoners are compensated with reduced sentences.

Such a plan sounds attractive but for two questions. 1) Are there ethical reasons why we might not want to consider prisoners as potential donors? 2) Should donors ever be compensated for their organs-turning a donor into a vendor? Sixteen to seventeen people die each day waiting for a vital organ. While we focus on procurement, we shouldn't lose sight of where and who the organs come from, and how they're procured.

The National Transplant Act of 1984 prohibited the use of organs to be "bought, sold, swapped or traded for any kinds of monetary gains."2 What is objectionable to the use of prisoner donors? Isn't the moral high road pocked with holes and contradictions? After all, prostitution is illegal but tolerated in the United States, where the body is exchanged for money. People are paid for donating plasma, sperm and ova, so why should we consider kidneys differently? Plasma, sperm and ova replenish themselves, and can be obtained by minimally invasive means. Donating a solid organ is a riskier venture, including severe pain, potential complications, the permanent absence of a body part and potential long-term medical and psychological sequelae. These factors may be relevant when individuals contemplate donating ova or a kidney, but should they, unto themselves, determine policy?

These questions might seem trivial to people who will die without an organ transplant, offensive to people who consider body parts their personal property which should be marketable if desired, and unnecessary to people who point to the laws that prohibit such activity. But a vast illicit black market exists. Supporters of market-exchange for organs claim it's a win-win situation. Recipients who can afford the cost fly to countries with more lenient, or no, regulations on organ procurement and transplantation. And the vendors, largely from impoverished populations, are given a boost out of poverty. In respect to kidneys, the path is usually, "from poorer to more affluent bodies, from black and brown bodies to white ones, and from females to males."3 Most of the time, relief is temporary, and vendors slide back into debt.4

Post-operative sequelae, moreover, such as pain, fatigue, and depression, may compromise the donors' ability to do the manual work they did before.5 Their poverty might hinder their ability to receive post-operative care. In the end, their situation may become more dire than before the surgery. Such an outcome runs counter to a basic tenet of medical practice in the United States, which is to do no harm. Even with altruistic donations, a generally healthy person accepts some degree of risk for a procedure that will benefit someone else. But the person has given consent, and accepted those risks.

What about those individuals who sell their organs? It can be argued that they gave their consent by entering the market in the first place. But at least by normative standards in the United States, their decision might not have been a genuinely informed one. They might have been uneducated, and unable to understand the risks. Their economic circumstances might have restricted their options. Saddled with debt, struggling to provide basic needs like food and clothing, they may have had little choice except to sell an organ.6

This argument raises the question of whether institutionalized persons can truly give informed consent. Their dependency on others, the pressure to conform, and fear of the consequences when they make decisions contrary to what is expected, exert pressure on the decisionmaking process. The Nuremburg Code of 1947, drafted as a response to the inhumane medical experiments conducted by the Nazis, opens with the following. "[The] person involved should have legal capacity to give consent, should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching or other ulterior form of constraint or coercion."7

Despite this code, there have been infamous clinical trials involving abuses of prisoners and other institutionalized persons.8 In 1972, the pharmaceutical industry was doing more than 90% of its experimental testing on prisoners.'From the 1940s to the 1970s, incarcerated prisoners were deliberately infected with or exposed to malaria, typhoid fever, cancer cells, cholera in attempts to cure these diseases. 10,11

Many criticisms of these studies focus on whether the prisoners willingly gave their informed consent. There were concerns that prisoners were influenced to participate in clinical trials by offers of special privileges, or reduced sentences, or access to better medical care. To consent to treatment, patients must demonstrate decision-making capacity. This element can be problematic amid worries that prisons are replacing hospitals for the mentally ill.12,13