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Death Row Organ Donation

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Prisoner and Donor Rights
Physicians and Executions
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The recent Indiana case of death row inmate Gregory Scott Johnson whose request to donate his liver to his ailing sister, gained national attention for the ethical, legal, medical, and social issues it raised. Below we provide a list of resources, including a review of the literature, other state cases, position statements by professional organizations, links to other literature, and media reporting. This site will be updated periodically.

Eric M. Meslin, Ph.D
Director

The Johnson Case

Timeline | Media

Arguments

SHOULD HAVE THE RIGHT TO DONATE

Cameron JS, Hoffenberg R. The ethics of organ transplantation reconsidered: Paid organ donation and the use of executed prisoners as donors. Kidney International 1999, 55: 724-732.
In the section targeting the use of executed prisoners as organ donors, there are five main arguments and counter arguments discussing the practice of using organs from executed prisoners. The first argument is: The process of execution may be modified with donation in mind. The first counterargument discusses the suffering of the prisoner and/or their family with the implementation of the procedures necessary to procure their organs. The second argument: Executions might be organized specifically to obtain organs by transplantation is countered by the lack of evidence in countries where these practices occur regularly. The third argument: Coercion of the prisoner will always be present can be set to rest by the mandated informed consent procedure. The authors counter the fourth argument: The use of executed prisoners organs condones and exploits execution, suggesting that a utilitarian perspective in needed (greatest good for the greatest number). For example, one executed prisoner can save at least 8 lives and help as many as 75 others. The authors are in agreement with the fifth and final argument: Organs of executed prisoners may be sold for profit, which is unacceptable.

Commentary on above article:
Miller RB. Ethics of paid organ donation and the use of executed prisoners as donors: A dialectic with Professors Cameron and Hoffenberg. Kidney International 1999; 55: 733-737.
Miller states that it could be argued to be ethically permissible for death row prisoners to donate an organ upon execution to a relative or friend, not an altruistic/unrelated donation. He states his position as, “I would allow the transplantation of deceased prisoners’ organs if, and only if, the society had a universal presumed-consent policy for all members of the society.”

Perales DJ. (2003) Comment: Rethinking the Prohibition of Death Row Prisoners as Organ Donors: A Possible Lifeline to those on Organ Donor Waiting Lists. 34 St. Mary’s L.J. 687. Avaiable at:
The author argues that condemned prisoners should have a legal right to donate their organs before and after death. He notes that although allowing prisoners to donate will not have a significant impact on the organ shortage, it cannot be denied that it will save the life of someone in desperate need. Throughout his commentary he discusses the history of prisoner organ donation, advocates a change in Texas policy, examines new styles of execution that would safely allow prisoners to donate, and argues that an anesthesia-induced execution is a possible means to procure organs from condemned prisoners.

Patton LM. (1996) A Call for Common Sense: Organ Donation and the Executed Prisoner. 3 Va. J. Soc. Pol’y & L. 387.
The author, Laura-Hill M. Patton, discusses the viability and potential that the death penalty carries in conjunction with an organ procurement plan. She begins her argument with historical context, drawing attention to the history of organ donation and transplantation in the US, traditional uses of cadavers in medical research, and the history of physician participation in executions. She uses this history to examine the current methods of execution, concluding that an alternative execution is needed in order for the death penalty to work along side an organ procurement plan. Patton attempts to resolve the philosophical, ethical, and practical problems that would be associated with physicians involvement in an organ procurement execution. In addition, she provides policy considerations as well as a discussion of similar proposals.

Adams PL, Cohen DJ, Danovitsh GM, et al. (2002) The Nondirected Live-Kidney Donor: Ethical Considerations and Practice Guidelines: A National Conference Report. Transplantation. 74(4):582-590.
A conference funded by the National Kidney Foundation met to discuss nondirected live-kidney donation and briefly touched on issues surrounding prisoners and organ donation. Participants discussed past successful organ donations made by prisoners and determined that a prisoner has the right to make a directed donation, if they are found mentally and medically suitable. In the discussion surrounding prisoners and nondirected donation the conference participants concluded that prisoners should not be considered for such donation.

Palmer LJ. (1998) Capital Punishment A Utilitarian Proposal for Recycling Transplantable Organs As Part of a Capital Felon’s Death Sentence. 29 U. West. L.A. L. Rev. 1.
Palmer argues that executed prisoners should be considered for donors after death through a discussion including: the history of rights in a corpse, China’s current practice, alternatives to the current D-BOSS system, and methods of execution. He concludes his argument by proposing that organ transplantation should be used as part of the convicted felon’s sentence. He then justifies his proposal with the three fundamental principles of punishment currently in place: deterrence; retribution; and restitution.

Palmer LJ. Organ Transplants from Executed Prisoners. North Carolina, US and London, McFarland and Company, 1999.

Callender CO, Kelly BS, Rivadeneira DA. (1996) Medical utility versus legal justice: A proposal for the use of prisoner-donated organs. Transplant Proc 28:37.
The authors in support of organ donation by executed prisoners note that there have been no surveys to determine prisoners willingness to donate organs. After brief reflection of the issue the authors conclude with five main points: (1) Prisoners should be allowed to make living donations if they are willing and healthy; (2) Regardless of the cause of death, dead prisoners should be able to donate; (3) Approaches and protocols can safeguard the rights of everyone involved; (4) the protocol in place (for non-heart-beating donors) is reasonable and applicable to prisoners; (5) a panel to decide the authenticity of the donation requests is recommended.

SHOULD NOT HAVE THE RIGHT TO DONATE

Hinkle W. (2002) Giving Until It Hurts: Prisoners Are Not the Answer to the National Organ Shortage. 35 Ind. L. Rev. 593. Available at:
Hinkle recognizes the fact that more organs are needed to close the ever-expanding gap between transplantable organs and patients on the waiting list. However, according to Hinkle, utilizing prisoners, living and/or executed, in order to close this gap is simply “irrational” and “unworkable.” The author breaks organ donation among condemned prisoners into two parts, concluding with other solutions to the national organ shortage. Part I discusses the existing organ procurement practices among condemned prisoners in China, organ procurement of executed prisoners legislation, physicians arguments, high risks of transmissible disease, and the negative effect it would have on the publics view of organ procurement. Part II focuses on organs in return for mitigated sentences, a lack of informed consent, and voluntary choice.

Anderson MF. (2000)The Prisoner as an Organ Donor. 50 Syracuse L. Rev. 951.
Anderson argues against death row prisoners donating organs based on his ethical objections to the death penalty. He believes that any program allowing such donation would encourage and increase the use of the death penalty. In addition, he sees this type of program as inequitable due to willingness or unwillingness to donate as well as the ability or inability to donate due to health or medical conditions. These issues aside, Anderson does not think that it is morally justifiable to kill one group of people (or threaten to kill them) in order to save the lives of others in need. He does however, believe that the donation of prisoners not on death row is a ethically superior to a program that would be limited to capital inmates. Anderson also touches on other issues such as payments, retribution, rehabilitation, coercive living conditions, contract coercion, and racial concerns.

Robertson JA. (1999) The Dead Donor Rule. The Hastings Center Report. 29(6):6-14.
Robertson begins with an insightful history and description of the Dead Donor Rule. In addition, he provides an outline for two issues surrounding proposals to change the rule regarding Anencephalic infants and executed prisoners. He argues that the proposals to execute prisoners by organ retrieval violate the existing Dead Donor Rule and provide no convincing arguments suggesting that there should be an exception to the rule.

ETHICALLY NEUTRAL

Organ/Tissue Donation and Transplantation: Prisoners as organ donors or recipients
The Science Museum of Virginia briefly outlines the ethical concerns with prisoners as organ donors including information surrounding physician participation in execution and the UNOS recommended resolution from 1998.

Prisoner and Donor Rights

PRISONER RIGHTS

Federal Bureau of Prisons
http://www.bop.gov//policy/progstat/6031_001.pdf
A program statement by the U.S. Department of Justice Federal Bureau of Prisons permits organ donation by deceased federal inmates. An inmate can be a living donor as long as the recipient is a member of the inmate’s immediate family, and providing the family bears the financial burden of the procedure.

The Texas Department of Criminal Justice
http://www.tdcj.state.tx.us/policy/policy-home.htm
This department has an organ donation policy for inmates offering paid transportation by the state to a Galveston hospital for the surgery and the costs of a prison guard. However, there has been a statement by a representative claiming that this does not apply to death row inmates.

Methods of Execution
Cited in: Plamer, LJ. (1998) Capital punishment: A utililtarian proposal for recycling transplantable organs as part of a capital felon’s deathsentence. 29 U. West. L.A. L. Rev. 1. Nine states allow prisoners to chose between two methods of execution, these states are referred to as capital felon option jurisdictions:

  • Lethal injection or lethal gas: North Carolina, California, Missouri
  • Electrocution or lethal injection: Ohio, South Carolina, Virginia
  • Hanging or lethal injection: Montana, Washington
  • Firing squad or lethal injection: Utah

Five Statutes for the Disposition of an Executed Capital Felon’s Corpse
Cited in: Plamer, LJ. (1998) Capital punishment: A utilitarian proposal for recycling transplantable organs as part of a capital felon’s deathsentence. 29 U. West. L.A. L. Rev. 1.

  • 1. Permit relatives to take corpse: 16 out of the 36 capital punishment jurisdictions require the corpse be turned over to a requesting relative. 6 of these jurisdictions pay shipping costs.
  • 2. Permit a friend to take the corpse:11 out of the 36 capital punishment jurisdictions all the corpse to be turned over to a requesting friend. This would only be allowed if no relative made a request for the corpse.
  • 3. A person designated by the felon take the corpse: Alabama is the only jurisdiction which allows the corpse to be turned over to a person designated by the capital felon prior to their execution.
  • 4. Unclaimed corpse donated to medical center or physician: If neither friends nor relatives request the corpse, then 5 out of 36 jurisdictions allow the corpse to be turned over to a medical center forresearch. The Florida jurisdiction also grants the corpse to a requesting physician.
  • 5. Unclaimed corpse buried by the jurisdiction: If there is no claim made for the corpse, then 15 out of the 36 provide for burial.

DONOR RIGHTS

The Texas Health and Safety Code Chapter 692 Section 012 under the Texas Anatomical Gift Act establishes that a donee’s rights by gift are superior to other person’s rights.

Physicians and Executions

American College of Physicians
Breach of Trust: Physicians Participations in Executions in the United States
http://www.hrw.org/reports/1994/usdp/index.htm
This report by the American College of Physicians was a research project put in place after the assistance of three physicians were involved in the execution of Charles Walker in 1990. The report includes: a brief history of physician participation in executions; medical organization responses to physician participation in executions; a state-by-state description of laws, regulations, and professional policies surrounding the issue; the ethical framework of the participation of physicians in executions; and policy recommendations. The American College of Physicians does not believe that physicians should be involved in the execution process and that as a society we need to determine how to impose capital punishment without their aid.

Cases

APPROVED

Steven Shelton (Delaware)
In 1995, A death row inmate donated his kidney to his mother.

Doctors mull prisoner’s surgery. Birmingham, AL. Associated Press. Available at:
http://www.lubbockonline.com/news/120796/doctors.htm

David Patterson (California)
In 1998, David Patterson, was a convicted felon serving a 13 year sentence in California. While incarcerated he donated a kidney to his daughter in 1996. Unfortunately, his first kidney failed and Patterson was willing to donate his second kidney. The prison would have been responsible for the payment of his dialysis treatments while in prison.

Kahn JP. Take My Kidney, Please. Available at:
http://www.cnn.com/HEALTH/bioethics/9901/kidney.donation/template.html

Josefson D. (1999) Prisoner wants to donate his second kidney. BMJ 318.
Available at: http://bmj.bmjjournals.com/cgi/content/extract/318/7175/7

Health & Science: Ethical questions in father-daughter transplant
http://www.ama-assn.org/amednews/1999/amn_99/summ0118.htm

David Nelson (Alabama)
In 1996, an Alabama man was granted a 21-day stay of execution by the Supreme Court to allow doctors to determine if he would be a match to donate a kidney to his brother.

Doctors mull prisoner’s surgery. Birmingham, AL. Associated Press. Available at:
http://www.lubbockonline.com/news/120796/doctors.htm

Alderson, West Virginia A federal inmate of a Women’s institution donated a kidney to her child in 1993 or 1994 [incomplete information]

DENIED

Campbell v. Wainwright (Florida)
In 1969, Calvin C. Campbell, an inmate of the Florida State Prison sentenced to death wanted to undergo medical test to determine if he would be able to donate a kidney. The court dismissed the complaint concluding that it as a matter of prison administration.

Larry Lonchar (Georgia)
Larry Lonchar, a 1996 death row prisoner in Georgia, wanted to give his kidney to the detective which supervised his investigation.

Lonchar V. Thomas
The Supreme Court agreed the federal courts should consider the inmates last minute habeas petition.

Lonchar V. Fulton County Superior Court
The county court denied the request.

Curriden M. (1996) Inmate’s Last Wish is to Donate Kidney. ABA Journal.

Lepore L. Convicted killer appeals to give life to others. December 3, 1995.
Available at: http://www.cnn.com/US/9512/death_row_donor/

Jonathon Nobles (Texas)
In 1998, organ donation was denied to a willing inmate incarcerated in Austin, TX. Even though the Texas Department of Criminal Justice has an organ donation policy for inmates, it does not apply to condemned prisoners.

Quin L. Inmate who tried to be organ donor executed. The Austin American-Statesman October 8, 1998.

Quin L. Organ donation argument failsto stay Austin man’s execution. The Austin American-Statesman October 7, 1998.

Halperin R. death penalty news-Texas. Oct 7, 1998.

Stephen Sage (Louisiana)
In January of 2005, inmate Stephen Stage of Orleans Parish Prison, offered to donate his kidney to Charlene Wiltz. Wiltz advertised her need for a kidney in a local newspaper add and Stage responded. However, the prison was not willing to grant Stage the chance to learn whether he was a match for Wiltz.

Pope J, Schleifstein M. (2005) Prison Blocks Inmate from Donating Organ: Meanwhile, Would-Be Recipient Sits, Waits.

Thomas Marra (Connecticut)
In May of 2002, the Superior Court of Connecticut denied Thomas Marra’s petition for habeas corpus. Marra believed that he was being denied of his right to die, consequently being denied of his right to donate his organs. Furthermore, Marra asked the court to assist in his suicide in order for him to make such a donation.
See, Thomas Marra v. Warden Cheshire, CV02463847S

State Legislation

All states prohibit organ procurement from death row prisoners and do not allow these prisoners to donate organs after death. Despite the attempts from various states below, no legislation has been passed allowing condemned prisoners to donate their organs.

Bartz CE. (2003) Operation Blue, ULTRA: DION—The Donation Inmate Organ Network. Kennedy Institute of Ethics Journal. 13(1):37-43. The author has outlined a bill, “Operation Blue, ULTRA:DION” to amend the National Transplant Act of 1984 and the Uniform Anatomical Gift Act in order to exchange the prisoners organs for time off of their sentence.

Kahn JP. (2003) Three Views of Organ Procurement Policy: Moving Ahead or Giving Up? Kennedy Institute of Ethics Journal. 13(1):45-50. The author takes a closer look at three organ procurement polices: two advocating a move toward the sale of organs and one advocating a move towards a policy permitting the donation of prisoners (referring to the Bartz article above). Kahn does not believe that Bartz solves the problem of coercion in his policy regarding inmates and organ donation, and therefore, does not support the proposed policy.

Missouri
In 1998, A “Life for a Life” program was introduced to representatives of the Missouri legislature by Rep. Chuck Graham. The bill would have commuted death row inmate sentences to life without parole if they agreed to donate a kidney or bone marrow, but it was not passed.

Strait J.“House Panel Nixes Plan for Inmate Organ Transplants.” St. Louis Post-Dispatch, Apr 10, 1998, at C3.

News Analysis: Proposed organ donation by death row inmates medically risky, coerced and immoral expert says. Record: Washington University in St. Louis, 22(27).
Available at: http://record.wustl.edu/archive/1998/04-09-98/articles/analysis.html

Florida
Originally, this bill would have authorized death row prisoners to donate their organs, however, not it did not pass and the bill was revamped. The House Bill was revised as a Senate Bill stating “convicts will be given the opportunity to decide whether they want their organs to be donate, should they die in prison.” However, this revision was still not enough to pass.

“An act Relating to Anatomical Gifts by Capital Defendants” William F Andrews, House Bill 999 (2000)

Mattson M. Looking for ways to increase organ donation. The Florida-Times Union. May 9, 2000.

California
Senate Bill 1968 was prepared in 1984 but never proposed. It provided organ donation by condemned prisoners, but due to California’s low percentage of actual executions it was foreseen not to have much of an impact on the transplant world.

Kansas
House Bill 2062, Martha Jenkins (1987) set forth to allow organ donation by condemned prisoners, but she was unsuccessful.

Indiana
Padfield (1995) was unsuccessful in urging Indiana’s Legislative Council to consider organ donation from condemned prisoners.

Texas
Jim Mattox, Attorney General was also unsuccessful at changing a policy to allow the donation of death row inmates.

The Texas Department of Criminal Justice (TDCJ) currently has an organ donation policy for general-population inmates only. Under this policy, the state incurs the costs of transportation to a hospital and security of the prisoner and a document from the prisoner stating their intent to donate is required.

Arizona
A bill was proposed by Bill McGibben allowing prisoners a choice of death, between lethal injection or having their organs harvested for transplant. He was also unsuccessful.

Georgia
In 1996, State representative, Teper, proposed allowed prisoners a choice between electrocution or guillotine, allowing those which chose guillotine an option of organ donation. He was also unsuccessful.

Public Opinion

Cyber Survey from Indystar.com
Should Indiana delay an inmate's execution to see if he can donate part of his liver to his sister?
Yes: 61%
No: 39%
Total Vote s: 3370

Should prisoners receive organ transplants? Available (below and) at: about.com

Death row poll

International Prison Donors

China
AAAS Science and Human Rights Program
http://shr.aaas.org/aaashran/alert.php?a_id=87

Diflo T. Use of organs from executed Chinese prisoners. Lancer 2004; 364(S1): S30.

Smith CS. Doctors Worried as Americans Get Organs of Chinese Inmates. The New York Times, Hanghai, November 8, 2001.

China Denies Selling Prisoner’s Organs. Newsmax.com. Available at:
http://www.newsmax.com/archives/articles/2001/6/28/51858.shtml

Rothman DJ. Body Shop. The Sciences 1997; 37(6):17-21.

Philippines

De Castro LD. Human organs from prisoners: kidneys for life. J Med Ethics 2003; 29: 171-175. Avaialble at:
http://jme.bmjjournals.com/cgi/content/abstract/29/3/171?etoc
This article discusses a proposal in the Philippines entitled, “Kidneys for Life” which would allow prisoners to donate kidneys in exchange for commuted sentences.

Stein G. Philippines bishops back death row organ donors. AM (An Australia morning broadcast on local ABC radio). Saturday, June 24, 2000. Available at:
http://www.abc.net.au/am/stories/s143288.htm

Organization Statements and Motions

OPTN/UNOS
http://optn.transplant.hrsa.gov/resources/bioethics.asp?index=7
The OPTN/UNOS Ethics Committee “opposes any strategy or proposed statute regarding organ donation from condemned prisoners until all of the potential ethical concerns have been satisfactorily addressed.”

FDA
Food and Drug Administration Memorandum to All Blood Establishments for "Deferral of Current and Recent Inmates of Correctional Institutions as Donors of Whole Blood, Blood Components, Source Leukocytes, and Source Plasma" June 8, 1995. http://www.fda.gov/downloads/BiologicsBloodVaccines/GuidanceComplianceRegulatoryInformation/OtherRecommendationsforManufacturers/MemorandumtoBloodEstablishments/UCM062637.pdf

AMA
Physician Participation in Capital Punishment
http://www.ama-assn.org/ama1/pub/upload/mm/369/ceja_ai92.pdf
This states that physicians, “should not be a participant in a legally authorized execution.” In addition, it defines the actions that do and do not constitute as participation.

Ethics Forum Debate Prisoners as Donors
http://www.ama-assn.org/amednews/1998/pick_98/inta1221.htm
The AMA’s Council on Ethical and Judicial Affairs at the 1998 Interim Meeting came to no conclusions regarding the issue of prisoners as organ donors.

American Society of Transplant Surgeons
A letter from the ASTS president to the New York Times discusses the organizations views on the execution manner of prisoners in China in order to procure organs. The organization deems the use of organs from executed prisoners as “unacceptable” and a “violation of fundamental principles.”

The Transplantation Society
The 1990-92 TTS Council was the first to publish an objection to the use of organs from executed prisoners. This objection was again confirmed by TTS in 1996 and 1999.

Sells RA. Proceedings of the ethics committee of the Transplantation Society 1990-92. Transplantation Society Bull 1993; 1:4.

Sheil R. Draft report: use of organs from executed prisoners. Transplantation Society Bull 1996; 5:28.

Cosimi AB. Position of the Transplantatoin Society ethics committee on paid organ donation. Transplantation Society Bull 1999; 8:25.

Sutherland D. Presidential address to the transplantation society 2004: Accomplishments, ethics, and scientific perspectives. Transplantation 2005; 79(9):1000-1007.

Current Policies

National Transplant Act of 1984
Applicable (and would prohibit) if donation was made for “valuable consideration”, including reduced sentence

Uniform Anatomical Gift Act
Applicable (and would not prohibit) if a prisoner had a signed donor card. Legally, all the UAGA requires of an individual to determine the disposition of their bodies after death is a donor card, although, this has not been fully practiced on the ground.

Other Resources

Death Penalty Information Center
http://www.deathpenaltyinfo.org/

Death Row Population (1968-2009)
Death Row Population graph

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