In January 2023, Democratic state Reps. Carlos González and Judith A. García introduced HD 3822 into the Massachusetts legislature. The bill proposed establishing a program within the Department of Corrections that would allow incarcerated individuals to donate bone marrow or organs in exchange for a reduced sentence. The bill aimed not only to address the organ shortage crisis—where over 100,000 people are currently on the national transplant waiting list, and 17 people die each day waiting for an organ transplant—but also to address racial inequities in organ donation recipients. “More than two out of three white people find a bone marrow match, whereas most people of color have less than a 50 percent chance of finding a match. Those who require transplants are disproportionately people of color,” stated Gonzalez. According to the bill’s sponsors, the proposed donation program would help racialized, marginalized communities gain access to life-saving tissue that they have historically been deprived of by procuring marrow and organs from the incarcerated population that disproportionately share their racial and ethnic backgrounds.
This bill was roundly criticized and eventually revised to remove the incentives for donations. Yet, the proposal raises important and persistent bioethical questions pertaining to the treatment of incarcerated persons. Incarceration and related issues have not traditionally fallen within the purview of bioethics. However, numerous bioethicists such as McHugh and Cleveland and Pitts have sought to bring attention to incarceration as a proper concern of bioethics and health justice, especially given its extensive harm to both individual and public health. Sean Valles, for example, lays out the negative health impacts of mass incarceration, which are not limited to the incarcerated—where they are subjected to substandard health services, daily physical and psychic abuse, and unsanitary and traumatizing living conditions while confined—but also their families and wider communities. This raises broader questions on how we should judge our current carceral practices from the perspective of health justice.
The Massachusetts bill also raises more specific ethical questions, such as how we should understand the nature of tissue donation by incarcerated persons. One issue at the forefront is whether the offer to grant a sentence reduction in exchange for tissue donation amounts to coercion or undue inducement. This issue is not unique to organ donation but extends to other invasive medical interventions involving incarcerated individuals, such as the ethics of offering methadone therapy, chemical castration, or neurocorrectives as conditions for reduced sentences or parole.
One of the paramount ethical principles governing medical practice is respecting patient autonomy, which requires medical professionals to obtain informed consent from their patients before performing medical procedures. As long as informed consent can be secured, as Franklin G. Miller argues, the proposed Massachusetts law should not be considered unethical. However, many are skeptical that informed consent is possible within prison settings. While the definition of informed consent is contentious, Beauchamp and Childress (2001) provide an influential framework, stating that consent is obtained when it is made intentionally, with understanding, and without controlling influences that determine their action. Although incarcerated persons are not forced to donate their tissues, and their consent is explicitly solicited, the background conditions of their confinement seem to violate the third condition. Prisons are coercive institutions that regulate the lives of the incarcerated, dictating their routines and interactions, often leading to a loss of autonomy. In these restrictive, dominating circumstances, it is difficult to conceive of incarcerated persons as not unduly influenced by captivity. Brendan Parent underscores this concern, stating, “Autonomy requires the ability to rationally consider the options in light of one’s values and make a decision free from undue influence…I cannot imagine any person in prison having the ability to rationally consider these risks in comparison to the possibility of a reduced sentence.”
If it is questionable for incarcerated persons to give consent that is truly free and informed owing to their perilous circumstances, then the state is obliged to protect them from options and activities that are potentially hazardous. Caution must be exercised when potentially exploiting and abusing vulnerable classes. At the same time, we must be cautious about the thin line between protection and objectionable paternalism. Characterizing incarcerated individuals as incapable of making rational decisions can be condescending, reinforcing harmful stereotypes that undermine their agency. Thus, any restrictions or prohibitions on such programs must be justified in ways that are protective rather than patronizing, ensuring that ethical safeguards are in place without unjustly denying individuals meaningful choices.
Another question is whether the bill is inherently dehumanizing. Offering sentence reductions in exchange for tissue donation raises concerns about commodifying incarcerated individuals’ bodies. Reducing a prison sentence for an organ seems analogous to payment for an organ. Given the apparent equivalence, the bill has been criticized as legally tenuous since it appears to be in tension with the National Organ Transplant Act, which prohibits the sale of human organs and tissues in the United States.
Beyond legal concerns, the proposal also raises more profound ethical questions about whether it reinforces the idea that some people’s lives have a price—an idea fundamentally at odds with human dignity. For some opponents of the bill, it expresses a disrespectful message that incarcerated persons, as well as other marginalized populations, are cheap, exploitable, and expendable for broader social utility. And don’t we already exploit the incarcerated enough?
However, these ethical considerations must be weighed against other moral considerations, such as whether the tissue donation offer is compatible with the penological purpose of punishment and the material and social realities that the bill seeks to address and negotiate. As noted earlier, organ and marrow shortages disproportionately impact poor, racialized communities and often have lethal effects. It is also important to acknowledge the racial inequities of mass incarceration and how the incarcerated class is produced not only by unjust social conditions but also by unjust policing and sentencing practices, including the levying of excessively long prison sentences. These are persistent structural problems. However, given their structural and intractable nature, we must also confront the dilemma of what viable alternatives there are to ameliorate immediate human suffering when extensive social change is not coming soon.
The Massachusetts bill should not be interpreted as an isolated event. Similar bills that have sought to increase organ donations by leveraging the incarcerated population have emerged before, including one introduced in South Carolina in 2007. These questions will continue to resurface as long as both the organ shortage crisis and mass incarceration endure. Finding a viable and ethically sound solution to the organ shortage crisis is critically important. If that solution includes the contribution of the incarcerated class as donors, then we must carefully navigate the complicated moral terrain and attend to the background conditions that make such proposals morally fraught.
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