Mass. Prisoners Could Choose Between Freedom And Their Organs

Massachusetts Democrats have a bold new proposal for prisoners: donate your organs or bone marrow, and get as little as a couple of months off of your sentence. The legislation, which has attracted five cosponsors in the state House, raises major bioethical concerns for the 6,000-plus people currently held in the Bay State’s prisons. In essence, the bill would ask prisoners which is more important to them: their freedom, or their organs and bone marrow.

The bill appears to go significantly beyond other organ-donation policies for prisoners. The Federal Bureau of Prisons says that prisoners may donate their organs while incarcerated, but only to immediate family members. In 2013, the state of Utah allowed organ donation from prisoners who died while being incarcerated. Most other states do not allow organ donations from prisoners at all.

The Ethics Committee of the United Network for Organ Sharing, the nonprofit that administers organ transplants in the United States, has panned proposals like the Massachusetts bill. “Any law or proposal that allows a person to trade an organ for a reduction in sentence… raises numerous issues,” the committee says in a position statement on their website.

The legislation, HD 3822, states, “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 [prison], on the condition that the incarcerated individual has donated bone marrow or organ(s).”

A five-member “Bone Marrow and Organ Donation Committee,” only one of whom is designated to be a prisoners’ rights advocate, would decide how much time off prisoners would receive from donating organs.

There is a long history in the medical field of doctors experimenting on and abusing prisoners, including in Massachusetts. While current rules prohibit the state Department of Corrections from “the use of an inmate(s) for medical, pharmaceutical, or cosmetic experiments,” in 1942, a professor at Harvard Medical School injected 64 Massachusetts prisoners with cow’s blood as part of World War II military research, killing one of the subjects.

The current bill might not even be legal. According to a 2007 ABC News report on a similar proposal in South Carolina, “It's probably going to be considered a violation of federal law. Congress passed the National Organ Transplant Act in 1984 that makes it a federal crime "to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation. It is likely 180 days off a sentence could constitute ‘valuable consideration.’”

The ABC News story noted another potential problem with the idea: Prisoners have “a much higher incidence of HIV, AIDS, Hepatitis, and even tuberculosis than the general population,” so it might not be safe to use their organs in transplant procedures.

The Massachusetts bill’s two sponsors, Democratic State Reps. Carlos Gonzalez of Springfield and Judith Garcia of Chelsea, did not respond to requests for comment. Gonzalez is the co-chair of the Joint Committee on Public Safety and Homeland Security, which has oversight over corrections in the state.

A spokesperson for the Massachusetts Department of Corrections (DOC) said in a statement to The Lever that “The DOC does not comment on pending legislation,” adding: “My understanding is that the DOC did not meet with legislators regarding this bill.”

On Twitter, Garcia said, “There is currently no path to organ or bone marrow donation for incarcerated folks in MA — even for relatives.”

Gonzalez, for his part, told WHYN, “I’ve put more effort into this bill after visiting a friend, who I consider a brother, in the hospital who is required to have dialysis 3 to 4 times a week while he awaits a kidney transplant. He’s a father of three children, and he is in stage 4 of kidney failure… I love my friend and I’m praying through this legislation we can extend the chances of life.” Gonzalez also noted to WHYN that there are significant racial disparities in who needs transplants, bolstering his case for the legislation.

Prisoners’ Legal Services of Massachusetts, which advocates on behalf of prisoners in the Bay State, told The Lever that the organization is “in touch with the bill sponsors and [are] cognizant of the significant problem of racial inequity in our health system that has left BIPOC communities disproportionately impacted by organ and marrow shortages. However, we are concerned regarding the potential for coercion and impact of inadequate medical care in carceral settings. We believe the solution must target the underlying structural problems leading to health disparities, including ongoing needless incarceration of so many who could live freely and safely in our communities.”