Niklas Kirchner and Daniel Lucas identify three major moral problems with a recently proposed bill offering prisoners reduced sentences in exchange for organ donation.

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Recently, two Massachusetts lawmakers proposed a bill that would allow eligible prisoners the option of reducing their sentence by “donating” organs or tissues, usually a kidney, or bone marrow. Prison sentences would be reduced by at least 60 days, but no more than 365 days. The proposed law would introduce a prison-specific incentive structure for organ “donation”. There are (at least) three moral problems with this proposal: the likely involuntariness of the “donation”, the violation of equality of opportunity, and instances of illegitimate sentence reduction.

Let us begin with some clarifications regarding the difference between donating and commercially exchanging organs. Whereas organ donors may be offered some monetary compensation for their trouble of voluntarily giving a body part to another person, commercial organ exchange involves the trade of body parts. In the former case, money is not the motivation for exchanging an organ. In the latter case, money is central to the motivation. In the case of the Massachusetts proposal, inmates are not offered money but maybe something even more valuable to them: freedom. In this way, the body part can be understood as an economic resource of the prisoner, as something which can be put to further self-interested use by trading it. There are some general moral problems faced by economic markets for organs. Beyond these problems, which also apply here, we want to highlight three further problems relevant to this prisoner-specific organ market.

Photo Credit: flickr/ajay_suresh. Image Description: A photo of the Massachusetts State House, Boston.

Since the moral acceptability of the proposed bill hinges upon the voluntariness of the prisoner`s choice to “donate” the organ, let us check whether participants have good alternatives in the scenario. Debra Satz argues that voluntariness stands in question when people engage in a transaction against the backdrop of extreme vulnerabilities. For example, an organ market is likely to attract poor people because it is an additional income opportunity. Such a scenario is a major reason why organ markets are morally problematic. It is hard to ensure that already vulnerable people enter the market not out of desperation but voluntarily. If inmates are granted the option to exchange body parts for early freedom, it is very likely that they would not have consented to organ transplantation if it were not for this very sentence reduction. Thus, prisoners may feel pressured to take this chance and act on reasons that would make the voluntariness of the action suspect. This puts the moral legitimacy of the “donation” itself in question.

The second problem relates to a violation of equality of opportunity, which is a common feature in most theories of justice. Roughly, prisoner equality of opportunity can be understood as the requirement that all prisoners with the same sentence should have the same opportunity to reduce this sentence by “donating” an organ. It is very likely that prisoner equality of opportunity will be violated since inmates who cannot perform an “organ donation”, (for example, for medical reasons) are denied the opportunity to reduce their sentence. Even if they could donate body tissues like bone marrow (for a lesser sentence reduction), they may not be able to donate a kidney (for a more significant sentence reduction). However, prisoners’ medical history should not affect the opportunities open to them. Accordingly, the bill would need to remedy and correct this unequal treatment.

Thirdly, contrary to other actions that lead to reduced sentences – such as learning a profession, or good conduct – trading one’s organs does not indicate a better chance of re-entering society or make prisons safer. Whereas the mentioned examples aim at a behaviour change in and outside prison, the designed organ “donation” does not. Since the proposed bill effectively introduces an economic exchange, inmates are not performing good or exemplary conduct but are offered a way to buy themselves out of prison. This neither indicates a long-term change in behaviour nor the prevention of ill conduct in prison. Therefore, the exchange of organs for early freedom would amount to an illegitimate sentence reduction.

In conclusion, incentivizing prisoners to give away organs is morally problematic in at least three ways. First, it exploits the situational vulnerability of inmates. Second, the proposal violates equality of opportunity. And third, it corrupts the justice system by opening up an illegitimate avenue for buying oneself out of prison.

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Niklas Kirchner and Daniel Lucas (@luc_phil_ger) are both PhD-Candidates at the Professorship for Practical Philosophy, ETH Zürich.