In China, organs are taken and used from the bodies of executed prisoners. Similar practices have been proposed in the United States, but currently it is illegal to use the organs from executed prisoners. The next few blogs will be comparing the two countries, and how the development of organ donation laws and regulation, the role of the death penalty in the justice system and its application, and the role of medical organizations in the two countries have influenced them both to come to such different systems regarding taking organs from the bodies of executed prisoners. An article (LINK), published in the Times Online this past August provides a good overview of the scandal that the Chinese have become involved in through this practice from a western media perspective. The laws in China and the United States vary widely, particularly where it applies to prisoners and to legal executions, so it is important to begin with an overview of the relevant laws in both China and the United States. Today's Blog will focus on the United States laws relevant to this issue.
In the United States, there are several federal acts that regulate the procurement of organs that are applicable when discussing organ donation from prisoners. Firstly, the National Transplant Act of 1984 prohibits any donation of organs or tissue (with the exceptions of blood, sperm or human eggs) made for “valuable consideration (information from Meslin, Eric M. Ph.D. "Death Row Organ Donation." LINK to the article).” There have been many proposals created with the intention of encouraging donations from inmates in exchange for leniency in sentencing, but none have been put into effect. (For example: “In 1998, a ‘Life for a Life’ program was introduced to representatives of the Missouri legislature by Rep. Chuck Graham. The bill would have commuted death row inmate sentences to life without parole if they agreed to donate a kidney or bone marrow, but it was not passed.” (Meslin, Eric M. Ph.D. "Death Row Organ Donation.")) This is because exchanges of this nature include a presumption of value. Dr. Jeffery A. Lowell commented on one such bill saying, “the buying and selling of organs in the United States is illegal…although the ‘letter of the law’ may not be violated in this bill, clearly the spirit is.” (LINK to Dr. Lowell's article) The second federal act that is important to this discussion is the Uniform Anatomical Gift Act, which states that all that is needed to determine what to do with a body after death is a signed donor card, although in prisons, this has not been fully practiced on the ground, and different states have varying laws regulating the disposal of unclaimed inmate’s bodies. The U.S. Department of Justice Federal Bureau of Prisons said in a program statement that deceased federal inmates (inmates who died in prison-as distinguished from executed prisoners) are permitted to donate their organs if they wish. This same statement also clarifies that an inmate can be a living donor as long as the recipient is a member of the inmate’s immediate family, and providing the family bears the cost of the procedure, but this too is an overarching rule, and specific laws about living donations in prisons vary from state to state (Meslin, Eric M. Ph.D. "Death Row Organ Donation."). The United Network for Organ Sharing (UNOS) is a “non-profit, scientific and educational organization that administers the nations only Organ Procurement and Transplantation Network (OPTN), established by the congress in 1984.” (LINK to UNOS website) The UNOS ethics committee “opposes any strategy or proposed statute regarding organ donation from condemned prisoners until all of the potential ethical concerns have been satisfactorily addressed.” Because UNOS is the only organization ever to manage the OPTN and to facilitate the organ matching and donation process in the United States, their stance on the issue is very important, and probably one of the main reasons that all states currently prohibit procurement from death row prisoners and do not allow these prisoners to donate after their deaths even if it is in accordance with their wishes.
Meslin, Eric M. Ph.D, . "Death Row Organ Donation." Indiana University Center for Bioethics. Indiana University School of Medicine. 6 May 2009 <http://www.bioethics.iu.edu/deathrow.asp>.
Lowell, Jeffery A. M.D. "Proposed organ donation by death row inmates medically risky, coerced and immoral." Office of University Communications (2008): Print.
O'Reilly, Kevin B. "Prisoner Organ Donation Proposal Worrisome." American Medical News April 9, 2007 Web.6 May 2009.
"Who we are." UNOS. 2009. 7 May 2009 <http://www.unos.org/whoWeAre/>.
"Organ Donation." Encyclopedia of Everyday Law. 2009. enotes.com. Web.6 May 2009. <http://www.enotes.com/everyday-law-encyclopedia/organ-donation>.