Bioethics Forum Essay

Is It Ethical to Reduce Prison Sentences in Exchange for Organ Donation?

A bill filed in the Massachusetts House of Representatives on January 20 would allow prisoners who choose to donate organs or bone marrow for transplantation to be eligible for reduced sentences. The bill stipulates that the sentence reduction would be at least 60 days and no greater than one year. Is such a policy ethical? For the sake of this essay, I will address this question with respect to donation of a single kidney.

The proposed law is intended to serve a clear benefit:  to promote organ donations that can save lives or improve the quality of life for patients with end-stage renal disease—donations that otherwise likely would not occur. However, this policy is apt to evoke moral qualms.

Many people might respond with an immediate intuitive judgment that it would be unseemly to induce incarcerated individuals to undergo a surgical operation, with non-zero risk of death or lasting morbidity, for the sake of reducing their prison term. Such an intuition might be a signal that the policy is unethical, but it doesn’t suggest any reason why prisoners should not have the option to make a donation that is deemed acceptable, and laudable, for healthy individuals who are not in prison.  To be sure, it is not the option itself, but providing the incentive for the option, that appears problematic in the prison context.  Several ethical concerns can be raised about the proposed law.

First, the incentive might be considered a bribe. Bribes, properly speaking, involve inducements for wrongful conduct, but there is nothing wrong with donating a kidney to benefit someone in need. Second, the offer of a sentence reduction might be seen as coercive. This, however, is a common misconception, as coercion involves a threat of harm to induce an undesired act, such as surrendering one’s wallet at gunpoint. While prison is a paradigmatic coercive environment, under this policy prisoners would be free to choose whether to donate a kidney, and there would be no penalty to those who choose not to donate. Third, the offer of a sentence reduction might be regarded as  an undue inducement. But the inducement would be undue only if it were to distort the rationality of an incarcerated person’s judgment concerning whether the benefits of a sentence reduction warranted the risks of the organ procurement operation. This problem could be obviated by a scrupulous process of consent for the donation obtained by a neutral party not employed by the prison to assure that it is a voluntary and adequately informed choice. (The bill is deficient in omitting any mention of informed consent.)

A fourth objection is that such a policy exploits incarcerated individuals who are highly motivated to reduce their time in prison. In his influential book, Exploitation, Alan Wertheimer offered a systematic analysis of this concept.  He wrote, “At the most general level, A exploits B when A takes unfair advantage of B.”  Clearly, the proposed law is meant to take advantage of the situation of individuals in prison by promoting organ donations in exchange for reduced sentences. Is that advantage-taking unfair? Wertheimer makes an important conceptual point: “There is a distinction between taking advantage of unfairness (or misfortune) and taking unfair advantage of unfairness (or misfortune).” The latter counts as exploitation; the former does not.

Incarceration for individuals found guilty of committing crimes is not per se unfair. In the U.S., however, imprisonment is characterized by pervasive unfairness, including racial inequities in sentencing, excessively long sentences, and inhumane conditions.  It doesn’t follow that the offer of prison sentence reduction in exchange for organ donation unfairly takes advantage of incarcerated individuals. Rather, it gives them an opportunity to judge whether, on balance, they are better off reducing their  time in prison in exchange for an organ donation, in addition to benefiting a person in need of a transplant.  On the other hand, one might judge that the sentence reduction offered, from 60 days to one year, is not sufficiently large to be fair to those willing to undergo the risks and discomforts of a kidney donation operation.

Although anticipating that others will disagree, I reach the tentative judgment that the proposed Massachusetts law is not unethical, provided that necessary conditions for obtaining informed consent and assuring the safety of donors are implemented. The latter would include carefully screening  candidates to assure that they are healthy enough to withstand kidney donation without undue risk, performing the operations to procure organs in health care institutions with a track record of high-quality for the procedure, and providing adequate follow-up medical care for the donors.

 The case for or against the ethics of a policy that offers prison sentence reduction in exchange for organ donation would be enhanced by conducting a survey of previously incarcerated individuals to ask whether or not they judge the policy to be acceptable and for what reasons.  These research participants would know about the prison environment without currently being subject to it.  While empirical research cannot, itself, resolve ethical issues, it would be informative if a majority of the respondents were opposed to or in favor of such a policy.

Franklin G. Miller, PhD, is a Professor of Medical Ethics in Medicine at Weill Cornell Medical College and a Hastings Center fellow and board member.