Organ trade and the penal system: contrasting cases, pragmatics and structural effects

This is a piece on a complex of related issues that I find it difficult to form a coherent opinion about. Any suggestions are welcome!

Yesterday, it was reported (here, here, here, here, here, here, here, here and here) that two sisters, Jamie and Gladys Scott, serving life sentences in the state of Mississippi, USA, have had their sentences suspended and been released (under parole-like conditions) on the condition that one of them will donate one of her kidneys to the other one (who has been on dialysis for quite some time). The case has raised some controversy, commentators bringing up the issue of whether or not the sentence was fair in the first place, whether the court decision is really in compliance with US federal law (banning organ trade) and – not surprisingly – that the whole idea is immoral. My colleague, Arthur Caplan, argues today that the decision crosses an important moral line, where legal decisions are transformed into business contracts involving people's bodies. The president of the American Society of Transplantation, Dr. Maryl R. Johnson, reportedly said in a formal statement:

The decision to donate an organ should be a truly selfless act, free from coercion and not conditioned on financial or any other material gain

It is a bit interesting that such strong, absolutist statements are made at the same time as the pragmatic case for allowing a controlled system of organ trade has been building with continuing reports about the hideous free global black market in human organs and tissue.  Especially the strong condition of "true selflessness" seems to me to be totally out of place, since it rests on a simplistic picture of human motivation: generally, there are no "true" selfless acts, just as there are no "true" self-centered ones – the human motivational apparatus is much too sophisticated to allow such crude – albeit romantic – characterisations. However, the pragmatic case for (regulated) human organ/tissue trade has one weakness (besides the question-marks surrounding the prospects of successfully enforcing the control of prices, procedures, consent, et cetera): the possible structural effects of such a system. And, possibly if not probably, cases where the transfer of organs between people is connected to the criminal penal system make this sort of threat salient.

For several years now, reports about and criticism of exactly this sort of connection in China has been a repeated news item (here, here, here) – connecting to the organised harvesting of the organs of prisoners, some after having been executed under the death penalty, as part of the domestic organ "donation" system or for sale on the international market. Tasteless, unethical and discriminatory (regarding non-living "donors" targeting especially groups disliked by the Chinese totalitarian regime) as this practice is, the most worrying element is revealed when it is cross-referenced with the vast illegal market for human organs in and from China (here, here). While the practice of harvesting the organs of prisoners (executed or alive) mainly pose serious ethical issues (bad enough, you might think), it does not in itself undermine the confidence in Chinese legal security (which can be questioned on many other grounds, of course) and rule of law. However, with the vast and highly profitable black organ market in place, the Chinese organ harvesting practice suddenly attains devastating proportions also from this standpoint. The illegal organ trade (as most other illegal businesses) having such gigantic turn overs and profits, the assumption that the system of organised organ harvesting in Chinese prisons sooner or later will corrupt the Chinese criminal law and penal system is highly warranted.

So, how does this connect to the recent US case? Well, one connection, of course, is the mere fact that criminal legal and penal decisions are connected to issues of organ transplantation. In the case at hand, a particularly nasty ingredient is the open reference made by officials about what providing one of the sisters with dialysis cost the state of Mississippi. But even discounting for that, the ruling puts into question rule of law, since it conveys the impression that convicted offenders may buy themselves off by providing some sort of socially beneficial service. That is, those offenders who happen to have the resources at hand. It also – just as in the Chinese case – creates serious doubts about the voluntariness of the donation in question. But to my eye, the doubts about the workings of the criminal legal system are far more serious. Some of this could be tackled, of course, by having the US adopt a variant of the Chinese position, where transparent statutes are created according to which inmates may buy themselves reduced or slacked sentences by giving away their organs. Such a revision, however, would put US on a sub-cellar level as regards the basic principle of equality before the law. And, of course, in either case, it is now well known that the black market in human organs is highly present and operational also in the US, thus creating worries regarding corruption and undermining of the rule of law similar to the Chinese case.


Now, the pragmatic case for a regulated market for human organs rests on two pillars: (1) the existence of the black market and (2) the great amount of good that a better supply of organs for transplantation would do. Standing as they are, these two reasons seem to apply to ideas about connecting the system for organ donation and the penal system. If inmates are made to donate their organs this is a good thing according to (2), and if it is done in an open and controlled system this will help crippling the bad thing of (1). What troubles me is that the fact of (1) makes it less probable that the idea of a well-functioning controlled organ market is realistic. It makes a difference that the black market is already in place, since the incentives to channel the organ supply out of the controlled system and into the black market are so great. This, in turn, serves to undermine (2), since that reason now has to be balanced against the risk of having the basic functionality of the legal and penal system undermined. As bad as the shortage of organs for transplantation is, it is completely overshadowed by that sort of threat.