Trading Organs for Freedom

In Mississippi, sisters Jamie and Gladys Scott are to be let out of prison on the condition that Gladys donates a kidney to Jamie. (See also an article in the Guardian) They are both serving life sentences for being accessories to armed robbery, and would otherwise not be eligible for parole until 2014. Jamie Scott is severely ill with diabetes and high blood pressure, and requires frequent dialysis. She has been given parole on medical grounds, while Gladys has been granted parole on the condition that she give one of her kidneys to Jamie within a year. Receiving payment in exchange for organs is illegal in the US. But is there a relevant moral difference between trading one of your kidneys for money, and trading it for your freedom?

In order to determine whether there is such a moral difference, it is necessary to consider what motivates our opposition to organ selling. One reason for being against the sale of organs is that payment corrupts what ought to be a purely altruistic process. This objection seems to apply equally strongly in the case of granting parole as that of paying money – it is still the case that the person donating the kidney appears to be doing so for selfish rather than altruistic reasons. One pertinent fact of this particular case may be that Gladys purportedly previously offered to donate a kidney to Jamie. Therefore, the terms of the parole may be seen as simply ensuring that she does so soon. On the other hand, the familial relationship between the two might be thought to make this case even more objectionable than others, since the sisterly bond between them is soured by selfishness.

Kidney selling may be objected to on the grounds that if it were legal to sell one of your kidneys, it would reduce the incentive for people to join the organ donor register, because people would not perceive there to be shortage of kidneys. This would be bad for society as a whole, since living kidney donors may suffer from their decision to donate, while posthumous donation does not have the same complications (though there may be some negative effects, for example upsetting their relatives). There are fewer people in a position to give up a kidney in return for parole than there are people in a position to do so in return for money. However, the objection still seems to apply at least to some degree. If it were realised that some prisoners gave up kidneys in order to escape jail, people might feel less pressure to donate their kidneys posthumously, believing there to be an adequate source of donor kidneys.

Allowing people to offer money in exchange for organs is often thought to be potentially coercive. A person might be offered so much money that they feel they could not refuse, particularly if they were very poor. The reason the person would feel they were unable to refuse would presumably be that gaining the money would be such a great improvement in their life. Getting out of jail now, rather than in four years time, and being able to spend those four years free and with your family, is a very great improvement in a person’s life. Therefore, if offering a person money could be coercive, it seems plausible that offering a prisoner parole could be coercive.

However, it might be thought that the problem with people being in a position that they could be offered so much money that they would take it in exchange for kidney is that for that to occur there must be an unfair wealth disparity. Thus organ sales would exploit those who are worst off in society, because they are in a vulnerable position. Prima facie, this would seem to carry over to the case of granting parole. Prisoners seem to be in an extremely vulnerable position, and it is the duty of the state not to exploit them. It might be thought that they have forfeited some of their right to protection by committing a crime. This would lead to the strange conclusion that those who are justly imprisoned should be allowed to trade their organs for parole, but those unjustly imprisoned (in the case at hand, there is some suggestion that their terms were unjustifiably long because of racism) should not be allowed to. It seems to me that we should not distinguish in this way between those justly and unjustly in prison. If offering those in adverse circumstances a great benefit in exchange for a kidney genuinely is exploitation, then those in prison should be protected from it as others are. This might be compared to the fact that we do not think that a person who commits a crime forfeits their right to medical care. Nor do we allow prisoners to be exploited by being subjects in medical experiments.

The reasons which might motivate the ban on organ sales which have been considered seem to indicate that there is no relevant difference between offering a person money for their kidney, and offering them their freedom.

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20 Responses to Trading Organs for Freedom

  • Ernesto says:

    I think you overlook a disanalogy between being offered one’s freedom and being offered money for an organ. The latter can be thought of as exploitation when, in addition to being in a position of power vis a vis the potential donor, the party making the offer would benefit from the exchange. But in this the case the offer is made by the authorities and the potential beneficiaries are the sisters.
    That ‘exploitation’ must involve the benefit of the exploiter shows in other cases we consider unquestionably as exploitation: wealthy citizens of developed nations buying organs from those of third-world countries, ganglords profiting on forced prostitution, sweatshops, etc.
    In the case of the Scott sisters, the authorities wouldn’t benefit from the exchange; the sisters would.
    I’m not sure whether the deal is morally objectionable or not, but if it is, it’s not because of exploitation.

  • Dmitri Pisartchik says:

    Taking the case at face value, I was having a somewhat difficult time coming to terms with the kidney donor receiving early parole. As mentioned at some point in the original post, there is something strange about trading in organs as get-out-of-jail cards. However, as one looks at what are taken to be grounds for grating parole (good behavior, sincerity in understanding the original crime and showing of remorse, ability to function in society upon release, it seems to become clearer how someones (voluntary) decision to donate a kidney to a person in need may be significant positive evidence in that regard.

    On a slight side note, I have yet to come across a strong enough argument to ban commercial sale of organs. Why should organ donation be “purely altruistic”? I doubt any human action can be this at all. Does it really make a difference to the recipient as to what intentions the donor had in providing the kidney? Is the kidney somehow tainted?

    Most of the other arguments, such as having a chilling effect on “altruistic” donations, are entirely empirical and require evidence to hold water, evidence that is simply not there.

  • I started reading this post and for a moment thought that Jodi Picoult had another novel out (http://www.jodipicoult.com/change-of-heart.html), but alas no.

    Like Dmitri I have no prima facie objection to organ selling, it all depends on context. Likewise in the situation described, for me, it would depend on how the details shake out. However, a bit of the story from the link Michelle provided caught my eye:

    “Although they would be eligible for parole in 2014, the Department of Corrections “believes the sisters no longer pose a threat to society” and their incarceration is no longer necessary for rehabilitation, Barbour said in a statement.”

    Now I don’t really know how parole works or ought to work in Mississippi, but if, as Gov. Barbour states, there is no longer a threat to society and incarceration is no longer necessary for the sisters rehab, then I’m at a loss as to why they ought not to get parole in any case. Why is attaching the kidney donation condition necessary?

    Purely as a matter of how the law ought to work, the question of the kidney seems superfluous. Either the sisters are suitable candidates for parole or they are not. Now presumably if the donating sister was deemed to still be a threat to society and still needed rehabilitation through incarceration (even if you accept that this works which is questionable) she would not be up for parole even if she was willing to donate a kidney. Likewise given that she is deemed fit for release I cannot see the relevance of her willingness to donate, unless the governor is a virtue theorist and somehow thinks it speaks to the now goodness of her reformed character. I am, however, sceptical about this.

  • Peter Wicks says:

    It seems to me that Dmitri’s reflections regarding grounds for granting parole remain relevant in spite of Muireann’s comments. Just because somebody is “fit for release” I the contact of protecting society and rehab doesn’t in itself mean that release is justified. Punishment also serves a deterrent purpose, which needs to be weighed against other considerations. I agree with Dmitri’s argument that donating a kidney could reasonably be considered to be the kind of good behaviour that can tip the balance.

    With regard to the perennial debate about trade in organs, I also share Dmitri’s objection to the idea that organ donation should be “purely altruistic”. Similarly, making an offer someone “feels they cannot refuse” is not coercion. It’s giving them an opportunity to improve their lives. Coercion enters the picture in the case of trafficking, and exploitation in the case of misleading claims and the like. These are issues that would need to be addressed, but there is nothing particularly exceptional about organ donation in this respect.

  • Peter Wicks says:

    Just noticed I didn’t proofreader my previous comment properly. Sorry. “I the contact” should read “in the context”.

  • Interesting topic. I have 2 comments.

    1) The crowding out effect you mention (of altruistic motives by other donors) has been discussed for some time and there is an extensive empirical literature. See for example Titmuss’ classic study of blood donation in Britain and the US (“The Gift Relationship” 1971) or Bruno Frey’s “Not Just for the Money”. Now usually that concerns altruistic motives being crowded out by financial ones, but in this case you might also have the interesting variation of the stigma that organ donation is something that convicts do.

    2) On the issue of coercion, in free markets the choices people make are ones that seem better to them than the others available. The details of this case are not clear, but if Gladys were only giving the kidney to escape prison, that only reveals that US prisons are so horrible that she prefers to do so. Banning the transaction would be the coercive act since it would not make those prison conditions go away, only Gladys’s option to escape them. The economist’s point here is that if you disapprove of this transaction, you should improve people’s other options i.e. the ghastliness of US prisons is the real problem.

  • Michelle Hutchinson says:

    Thank you very much for all your comments.

    Ernesto:
    I agree that in this case the agent which enforces the organ transplant (the state) does not seem to benefit from it. However, I do not think that that provides they required disanalogy from organ selling. This is because it is also illegal the state to buy organs from people, and give them to others. An analogous case to this Mississippi one might be the NHS buying kidneys and then distributing them to those who need them. The state does not seem to benefit in this case either, yet it is thought morally objectionable.

    Dmitri:
    I think it is a very interesting point you make about Gladys’ kidney donation being evidence of reformed character, and hence suggesting she should be allowed parole. I wonder to what extent that was the motivation behind the decision. While I share your worries about the arguments against organ selling, I think many people feel that the medical profession in general ought to be more altruistic and centred on helping people than other ones (perhaps than any others). One possible reason for this might be fear of the power doctors wield (think of Harold Shipman).

  • Michelle Hutchinson says:

    Muireann:
    If they are no longer a threat and require no further rehabilitation, I assume that they are not eligible for parole either because they are thought to deserve more punishment, hence must be further punished for justice to be done, or because the Department of Corrections wishes to deter others from acting as they did, and see a very long jail sentence as the best way to do so (as Peter suggests). If it had these motivations, the Department might think that parole was allowable under the condition of donating a kidney. They might believe that giving up one’s kidney was a harm, and hence that justice was done by Gladys giving up a kidney without needing further imprisonment. Or they might believe that giving up a kidney would be seen as a harm, and hence the public will be as much deterred from crime by seeing a criminal give up a kidney as by them kept in jail for longer. (I am not suggesting that these were their actual motivations, particularly given that Gladys had previously expressed a wish to give her sister a kidney.)

    Peter and Philosopher’s Beard:
    I agree that it seems strange to call an action coercive which when its sole effect is to increase a person’s options. I think that a possible response to your argument might be that donating a kidney will severely harm the person doing it, but that most people do not, or even cannot, comprehend the magnitude of that harm. On the other hand, they are very well aware of the harm they are now suffering from (in this case prison). Therefore, by giving them a choice between the two, you are putting them in an unfair situation, by offering something which seems much better than it in fact is. Such an argument might be particularly plausible on a view which saw bodily integrity as peculiarly important – perhaps a religious view which thought you needed your body to be entirely in tact in order to go to heaven.

  • Michelle (and Peter):
    I guess I should have said in my original response that it surely depends on what we think the purpose of incarceration is and what theory of punishment we might subscribe to. In which case I can see that the point being made is that if the aim is deterrence or retributive justice then we might have reason to think that the kidney condition could have a role to play, whereas if it is rehabilitation and continuing threat to society, we might not.

    At the outset I think we need to distinguish between what system is (purportedly) in operation in Mississippi and what system we think ought to be in operation there. The question regarding which rule of law qua punishment the good citizens are currently (meant to be) being governed by is not something I have any knowledge on, but it would be interesting to investigate the jurisprudence of Mississippi law in this regard. On the other question I am still sceptical about the kidney condition even if we think that there is a role for deterrence and retribution in the structure of our criminal justice system. The reason is that I do not think that allowing kidney donation is necessarily a good way of meting out these particular forms of retributive justice. If we want to deter others from criminal acts or punish those who have committed them then escaping this via kidney donation seems too easy an out. As such it is likely neither to deter nor punish anybody. Yes the criminal donor would have to undergo an operation and incur some risks, but given that organ donors get a pretty good medical work-up, tend only to be accepted as donors if they are fairly healthy, and can live perfectly happy long lives on only one kidney, then it doesn’t look particularly onerous in comparison to a stretch of time inside.

    A further interesting question that this case raises has appeared over on the Journal of Medical Ethics blog where this is being discussed by Iain Brassington, and that is whether donations of this sort ought to be restricted to family members (if we think that they are permissible in the first place) – http://blogs.bmj.com/medical-ethics/2011/01/04/live-donor-transplants-a-real-prisoners-dilemma/

  • I disagree with Ernesto’s point that the state does not benefit from the kidney donation. As per CNN’s article, Jamie’s dialysis costs the Department of Corrections $110,000 per year. The entire tally of her medical treatment is unknown. By paroling these ladies, the DOC is no longer paying to feed, house and clothe them, but more so, they no longer have to foot the bill for Jamie’s medical costs.

    Yes, Medicaid will most likely pay for Jamie’s transplant and subsequent treatment, but if all goes well, it will be less than keeping her in prison and on dialysis. Unless Gladys suffers complications from the procedure – and that is another issue unto itself, because 4.4 living kidney donors die each year in the US within 12 months of surgery (per OPTN) and many do experience surgical issues – the state will no longer financially support Gladys. That is surely a tremendous benefit to the state and DOC.

  • Peter Wicks says:

    @Muireann I agree that kidney donation per se cannot be a substitute for punishment without severly undermining the deterrent effect. (Personally I’m not remotely interested in retribution for it’s own sake.) What I think it can do is to constitute an example of good behaviour as grounds for early release, in accordance with common practice and obviously within certain limits.

    @Michelle I think the (entirely plausible) situation you describe is would be more properly described as exploitation. Nobody is being “coerced”. This is exactly the kind of thing I had in mind as a legitimate worry, but again I don’t think there’s anything particularly exceptional about organ donation, except to the extent that people think there is, for example for the religious reasons you mention. This of course raises further questions about how far we should go in accommodating preferences that are based on beliefs that are not supported by evidence.

  • Peter:
    Yes I see your point, but I think it depends on the context whether this is an example of good behaviour or not. I’m not that convinced that donation to a family member is an exemplar of the type of good behaviour we are after for our (ex-)criminal population. Surely we want evidence that they have reformed in character in relation to whatever crime they formerly committed or are likely to commit if released. If this is the case then the kind of good behaviour we might want evidence for is the (now) lack of a tendency to engage in armed robbery, murder, etc (or whatever it might be). Donation between siblings seems to me to be an unlikely candidate for evidence of this kind of reform. I might be more convinced by something like an inmate initiated request to be an anonymous donor, but I’m still not sure that this is evidence of the kind of good behaviour of the kind that society might look for in its reformed criminals.

  • Peter Wicks says:

    Thanks Muireann. I’m still inclined to think that it is, in the sense that it reveals a sense of compassion that can be construed as evidence that the person concerned has outgrown his/her delinquency.

    That being said, it’s fairly obvious from the CNN article that the actual motivation was largely if not entirely political, in which case perhaps the discussion we should be having is how legitimate such motivations are. Essentially this became a media issue (that’s why we know about it of course) and public compassion for the sisters’ predicament overwhelmed the more usual desire for revenge and protection that provides the main driver, even if not the best justification, for punishment. This was in no way an objective decision based on previously agreed rules, and in the end this seems to me to be the main problem in this case.

  • And what would you say the day medical science makes so much progress that it can replace brains, eyes, ears, and all “organs”… people like you would go haywire arguing… ultimately, only one truth will prevail… “nothing matters”…

  • Peter Wicks says:

    So what should we do instead of arguing?

  • I don’t know but I thought I might go shopping on the hidden (spam?) link in the post prior to yours Peter. 🙂

  • Peter Wicks says:

    At least we now know what matters! 🙂

  • There may not be an intrinsic moral difference, but you also have to take into consideration to what extent a legal system of a sort where resourceful people can buy themselves free is desirable in general. When the resource in question is a human organ for transplantation, the existence of the huge black market for organ trade also has to be factored in. I take up these aspects in my own comments on this case: http://philosophicalcomment.blogspot.com/2011/01/organ-trade-and-penal-system.html

  • Julian Savulescu says:

    Equality suggests that all prisoners (or at least those Gov Barbour judges are no longer a threat) should be offered early parole in exchange for donating an organ. What a splendidly original solution to the organ shortage problem! It is remarkable that when the Chinese give death row prisoners the opportunity to donate their organs after their deaths, they are condemned, roundly and internationally. Yet when a US state offers live donation in exchange for parole, there is no international outcry. In fact, I applaud them. Helps the organ shortage problem, cuts down health care costs and removes the pressure on gaols.

  • Walt Slocombe says:

    As I understand it, the sisters themselves came up with the idea that one would donate a kidney to the other if they were released. If that is true, it seems to me to be highly relevant. They made an offer to do something if released, and all the state is doing is insisting they carry out their end of the bargain. For example, if a prisoner promised to work as a hospice volunteer if released, would we really object if the state said, if you don’t do that, your parole will be revoked? You would hope that a realistic plan to do something useful if released would always be a factor in the parole decision, and enforcing the bargain a legitimate part of parole policy.

    Also, as I understand it, the sentences in question are monstrously unjust — long prison terms for a petty theft. In my view, the real question is not the terms of their release, but why the devil they are in prison in the first place.

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