A proposal to let Massachusetts prisoners donate organs and bone marrow to shave time off their sentence is raising profound ethical and legal questions about putting undue pressure on inmates desperate for freedom.
The bill — which faces a steep climb in the Massachusetts Statehouse — may run afoul of federal law, which bars the sale of human organs or acquiring one for “valuable consideration."
It also raises questions about whether and how prisons would be able to appropriately care for the health of inmates who go under the knife to give up organs. Critics are calling the idea coercive and dehumanizing even as one of the bill's sponsors is framing the measure as a response to the over-incarceration of Hispanic and Black people and the need for matching donors in those communities.
“The bill reads like something from a dystopian novel,” said Kevin Ring, president of Families Against Mandatory Minimums, a Washington, D.C.-based criminal justice reform advocacy group. “Promoting organ donation is good. Reducing excessive prison terms is also good. Tying the two together is perverse.”
The bill would create a Bone Marrow and Organ Donation Program within the state Department of Correction to allow incarcerated individuals to receive a reduction in their sentence of between 60 days and a year on the condition that they have donated bone marrow or organs.
Democratic state Rep. Judith Garcia, one of the sponsors of the bill, said it was filed in response to what she called the health inequities stemming from “the vicious cycle of unjust incarceration and over-policing of Black and Brown communities.”
Black and Hispanic communities are at higher risk for health conditions that might require organ donation, and discriminatory incarceration rates eliminate many likely donor matches from the pool leading to longer waitlists for African Americans compared to white individuals, she added.
To be sure, the need for live-saving organs is great: There are more than 4,600 individuals in Massachusetts — and nearly 106,000 people in the U.S. — awaiting an organ transplant. About 28% of those in Massachusetts identify as Black, Hispanic or Latino, according to data collected by the Organ Procurement and Transplantation Network.
But critics say the measure goes about it the wrong way.
Offering reduced sentences in exchange for organs is not only unethical, but also violates federal law, according to George Annas, director of the Center for Health Law, Ethics & Human Rights at the Boston University School of Public Health. Reducing a prison sentence is the equivalent of a payment, he said.
“You can’t buy an organ. That should end the discussion,” Annas said. "It’s compensation for services. We don’t exploit prisoners enough?”
Democratic state Rep. Carlos Gonzalez, another co-sponsor of the bill, defended the proposal, calling it a voluntary program. He also said he’s open to establishing a policy that would allow inmates to donate organs and bone marrow without the lure of a reduced sentence. There is currently no law against prisoner organ donation in Massachusetts, he said.
“It’s not quid pro quo. We are open to setting policy without incentives,” Gonzalez said, adding that it is “crucial to respect prisoners’ human dignity and agency by respecting their choice to donate bone marrow or an organ.”
Garcia and Gonzalez are both members of the Massachusetts Black & Latino Legislative Caucus.
In 2007, South Carolina also sought to offer prisoners a reduced sentence in exchange for donating an organ. After criticism of the proposal, the state instead created a voluntary tissue and organ donation program for prisoners without offering any reduced sentences in exchange. Federal prisoners are allowed to donate organs, but only when the recipient is a member of the inmate’s family.
The Massachusetts bill would create a committee to decide the amount of bone marrow and organs that must be donated to earn a sentence reduction. The bill would set a maximum of “not more than 365 day reduction” in their sentence for any prisoner who participated in the program.
The Department of Correction would be barred from receiving any payments for bone marrow donations.
The bill appears to face unlikely odds in the Statehouse. It has only a handful of legislative supporters and Democratic House Speaker Ronald Mariano sounded a skeptical note this week.
“It’s kind of an extreme way to get your sentence reduced," he said. "I don’t know if it makes much sense.”
