Organ Donation to Prisoners: Ethics and the Law

In recent U.S. history, there have been many debates regarding the degree of human rights prisoners are entitled to, particularly in regard to health care.

The debate is even more controversial in the arena of transplantation — since organ transplantation, unlike other medical therapies, requires an actual human supply of resources.

Since one in four free Americans do not have health care and would not normally be able to access transplant services, many who oppose organ donation for prisoners point out that the practice ultimately gives convicts more benefits than are enjoyed by the general public.

Another view is that denial of transplant is simply part of the sentence or punishment for the crime which the prisoner has been sentenced.

The Constitution Protects Prisoner Rights to Health Care

But the Constitution of the United States has been written to protect certain prisoner rights. The Eighth Amendment has been specifically interpreted as assuring the rights of prisoners to health care access by stating: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

In fact, the Supreme Court ruled in 1976 that the state could not bar prisoners from access to organ transplants and other support services without violating these Eighth Amendment rights.

So despite whatever ambivalent feelings individuals or communities may have about a prisoner's access to organs, current laws are quite clear on the issue.

Who Deserves the Gift of Life?

Some in the public have advanced the simplistic theory that prisoners are, on the whole, less deserving and contribute less to society than upstanding members of the community, and should therefore be passed over in allocating scarce organs.

But some felons have been successfully rehabilitated and will one day be free to make future contributions. Moreover, many would argue that many unincarcerated members of society will not contribute significantly more than a prisoner.

Allocating resources essential for life on the basis of "worthiness" judgments is unlikely to achieve social consensus because of the very nature of being capricious and arbitrary. It also undermines our belief in the basic equality of all people.

The Role of the Physician

The role of the physician in providing care to any patient, be they incarcerated or not, is that of an advocate — to obtain the best medical care possible given the resources available. The role of the transplant specialist should be no different.

In response to several requests for a position statement on accessing transplantation for convicted criminals, The United Network of Organ Sharing Ethics Committee, in keeping with the 1976 Supreme Court ruling, has stated: "...convicted criminals have been sentenced only to a specific punishment, and has not been sentenced by society to an additional punishment of an inability to receive consideration for medical services ... absent any societal imperative, one's status as a prisoner should not preclude them from consideration for a transplant; such consideration does not guarantee transplantation."

And while there may be differing viewpoints on this issue, it should not be the role of the physician to interpret societal values. Since physicians also have their own individual opinions, the temptation is to impose their own personal beliefs to a given situation. However, bedside rationing of organs by the physician runs the risk of inconsistent decision making.

Only society at large has the ethical and political authority and responsibility to decide how organs should be distributed.

John Fung, MD, PhD is chief of the division of transplantation surgery at the University of Pittsburgh Medical Center.