Dec. 31, 2010 -- As jubilant supporters await the release of Gladys and Jamie Scott, who brokered a bargain with Mississippi Gov. Haley Barbour to get early prison release by undergoing an organ transplant, medical ethicists are crying foul.
Ethicists say suspending a prison sentence on the condition that one sister give the other a kidney is a "quid pro quo" and threatens the ethical underpinnings of living donation laws.
Dr. William Hurlburt, a Stanford neurologist who sat on the President's Council on Ethics, said the news was troubling.
"We pondered over and over this issue and came to the conclusion that it was such a tricky medical realm with so much risk for abuse that we agreed organ donation must always remain altruistic," he said.
On Thursday, the governor signed an order that suspended the Scott sisters' life sentences as long as Gladys, 36, who is healthy, donates her kidney to Jamie, 38, who has been on dialysis. The women have been imprisoned for the past 16 years on charges of masterminding an armed robbery.
"As soon as the governor began throwing around commutation -- getting out of her prison sentence -- he began to undercut the ethical framework," said Dr. Art Caplan, director of the Center for Bioethics at the University of Pennsylvania. "He has now put the sisters' donation in jeopardy because the parole is absolutely a payment, which is against the law. It would be considered pressure or coercion."
The Scotts' reprieve came just one day after the death of the first living kidney donor, Ronald Herrick, who gave the organ to his ailing twin brother in 1954. At the time, the notion of living donation was controversial and the ethical guidelines that evolved from that case illustrate why the governor has set a dangerous precedent, say critics.
Herrick, a retired math teacher who died at age 79 in Maine on Wednesday, was recognized as the world's first successful organ donor. His brother was kept alive for eight years and the lead surgeon, Dr. Joseph Murray, went on to win a Nobel Prize. Herrick was only 23 when he donated his kidney.
At the time, many opposed organ transplantation, particularly the Catholic Church, equating it with the desecration of a body. Some medical experts argued it was unethical to operate on a healthy person and put them at risk, saying it contradicted the Hippocratic Oath to "keep [patients] from harm."
"People said you cannot harm someone solely for the benefit of the life of another," said Caplan. "It has to be voluntary, altruistic. And if people do this, they have to really understand and make sure it's informed choice -- no pressure, no coercion and no reward."
The philosophical battle resulted in the legal and ethical guidelines that govern organ donation today. Restrictions were placed on those in mental institutions and child donors because they are not deemed competent to give informed consent and an irrevocable decision that might harm them.
What if Gladys Scott Cannot Donate Kidney?
Barbour, who is a Republican in his second term and a possible presidential candidate, said the parole board agreed with the indefinite suspension of the Scott sisters' sentences, which is different from a pardon or commutation because it comes with conditions.
But some worry that Gladys Scott might not be a qualified donor, and if not, would she have to return to prison?
"What if she changes her mind or is medically unsuitable?" said Caplan. "We don't know yet if she is physically a good match. HIV, hepatitis or cancer could knock her out."
"For more than 50 years in the U.S. and in law and ethics, quid pro quos are not acceptable. Her sister should have the right to change her mind until they wheel her into the hospital and take out the kidney," he said.
But the governor told the Associated Press said the issue doesn't worry him.
"All of the 'What if' questions are, at this point, purely hypothetical," said Barbour said in a prepared statement. "We'll deal with those situations if they actually happen."
The Scott sisters, who are African American and had no prior record, have been backed by civil rights advocates who hailed the governor's decision, saying it corrected a "miscarriage of justice."
They have insisted they were innocent and that witnesses were pressured into testifying against them. Three boys, who netted only $11 in the robbery, served only two years of an eight-year sentence.
The Scott sisters, who had five children between, served 16 years in prison and had exhausted all appeals. They would have been eligible for parole in 2014.
Barbour had intervened twice in the case, asking the parole board to give the Scott sisters early release so Jamie Scott could get a transplant, according to his press secretary Daniel Turner.
"There was a medical necessity, as a preferential consideration," said Turner. "It's also expensive for the taxpayers to keep a seriously ill person incarcerated. If [Jamie] can have this procedure, it very likely will be done through Medicaid.There are a lot of facets to it and there are arguments each side of the ledger."
Some ethicists say the governor should have separated the issues of early release and organ donation.
"He could recognize her generous offer and take that into account in determining whether the prisoner was worthy of parole or release. In society, we usually try to determine how the character has changed or evolved while in prison," said Felicia Cohn, bioethical director for Kaiser Permanente in Orange County, Calif. "If she made a generous gift to her sister that might qualify for release, but it shouldn't be a condition for release."
Cohn recognizes that society wants to encourage altruism, but said, "I am not sure this fits the definition."
"Altruism means behaving selflessly and giving for the benefit of others and some argue that we can never be fully altruistic," she said. 'Most of us derive some personal benefit or pleasure for giving to others. But the idea is that we don't benefit in any way."
Gladys Scott has said she wants to donate a kidney to her ailing sister, but Cohn said, "I wouldn't describe it as a gift. Essentially one sister is being paid for her kidney. It's not monetary payment, but it's her freedom, which is worth even more. Our freedom is considered invaluable."