An Offer They Can Refuse // Allowing convicts to use kidneys as barter?

Whenever Renewal, the organization that helps facilitate kidney transplants, emails a notification that operations are taking place, I stop what I’m doing and say a kapitel Tehillim for the refuos of the donors and recipients.

It’s inspiring that there are people willing to undergo surgery and the loss of a kidney to help another person.

What would we say, though, if we were all required to part with a kidney? Most people would object.

And if the requirement were limited to convicted criminals? Likewise.

But—and here it gets tricky—what if it were not a requirement of a convict but a mere incentive offered him for an organ donation? Like some time lopped off his sentence?

Last month, two Massachusetts legislators, Judith Garcia and Carlos Gonzalez, proposed a bill offering just that: up to a year cut from the time prisoners are serving if they donate a kidney, a lobe of their liver or bone marrow, in order to save a stranger’s life. Bear in mind that the US has the highest incarceration rate in the world, and that the resultant cost has risen to the tens of billions of dollars yearly.

Incentivizing the donation of a part of one’s body is inherently objectionable to many. In fact, it is illegal (as per the 1984 National Organ Transplant Act) to sell an organ, even though it is perfectly permitted —in fact laudable—to gift one.

But does that really make sense? Even leaving aside the inherent oddity of something being praiseworthy to offer as a gift but abhorrent to sell, does anyone object to, or any law forbid, selling one’s hair or blood? Ah, you say, but those both replenish themselves in time. Well, so do livers and bone marrow. And even a kidney’s absence isn’t momentous, if its partner remains at work.

The counterargument is that, were organs to be salable, poor people would feel pressure to part with theirs, to the benefit of wealthier people, exacerbating the gap between haves and have-nots.

In any event, the reaction to the Massachusetts proposal was a collective howl of outrage. Some described it as “incredibly offensive”—others, as “coercive and disrespectful” and “dystopian.”

Tweets (shrieks?) included comments like “[An] egregious violation of medical ethics,” “terrifying” and “utterly disgusting and predatory.”

And as a result of the outcry, the legislators amended their proposal, simply permitting prisoners, like any unincarcerated citizen, to donate organs, but without any quid pro quo. Such permission, though disallowed in most states, is currently offered to convicts in Texas, Utah and South Carolina, and really presents no great ethical dilemma. 

But the original Massachusetts proposal —despite the angry reactions—might be worthy of reconsideration.

Because prisoners are only one part of the picture here. The other part depicts the tens of thousands of sick people who will die because no organs are available to save their lives. 

In 2022, 6,466 people became living organ donors in the United States. Yet, currently, more than 100,000 men, women and children are waiting for organ donations that will allow them to live.

Should not that fact—along with the fact that countless poor people could be made less poor, and the wealth gap narrowed, were bodily autonomy to be extended to allowing people to choose to offer a kidney, liver lobe or bone marrow for cash—be part of the societal calculus?

Instead of, so to speak, throwing the kidney out with the electrolyte solution, maybe the prisoner organ donation plan can just be tweaked a bit.

What if the deal were offered only to nonviolent lawbreakers who are serving unnecessarily long sentences (often statutorily required), and applicants were evaluated by a psychologist to gauge that the decisions were made freely (as freely as any other health-related transactions, like smoking cigarettes or overconsuming sugar)? And with the assurance that the donors will be placed near the top of the organ recipient priority list should they themselves ever need an organ?

Some will say that even such an offer will place society on a slippery slope toward a broader acceptance of organ selling. It might, indeed.

But maybe that “bottom of the slope” idea, disturbing though it may be, is worth some discussion, too.

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