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The Incarcerated Are Too Vulnerable to Consent

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Prisoners Hands in Cell BarsThis post was written by Lawrence O. Gostin, Faculty Director of the O’Neill Institute for National and Global Health Law at Georgetown University.  Professor Gostin is also a University Professor and director of a World Health Organization Collaborating Center on Public Health Law and Human Rights.  For more information about this post, please contact The original post can be found at the New York Times  here.

At first glance, why wouldn’t society want to allow prisoners to voluntarily donate organs? It seems like it is a win-win: the prisoner can exercise his or her choice (some would say “right”) to save a life, while society wins by reducing the scarcity of life-saving organs. But what seems like a win-win is unethical and unbefitting a democracy.

I have talked with many prisoners and seen the conditions in which they exist. Prisoners’ lives are determined almost completely by their keepers, and they will do almost anything to make their lives better, in the hopes of  less isolation, better conditions and even parole. Despite rules that organ donations should not affect prisoner conditions, they will believe otherwise. Free consent is not truly possible under coercive conditions.

Beyond the inherently coercive environment, many prisoners are mentally ill, poor and uneducated – and some are very young – rendering them incapable of giving informed consent. While in prison, they face despair and loneliness— exacerbating their emotional distress. As a confined population, prisoners could be “educated,” even persuaded or enticed, by wardens and the state to donate their organs. 

Beyond the problems of subtle coercion or inducement, it also may be unsafe to use prisoners for organ donation because they have much higher rates of infection from H.I.V. and hepatitis than the general population. Although screening tests are good, they are not perfect, and confirmatory tests can be expensive. Transplant recipients, therefore, are placed at increased risk of contracting serious diseases — another reason to be cautious about prisoner donations.

Prisoners awaiting death are even more susceptible to exploitation, and their desperation provides a greater inducement to donate. It would place the medical profession in the unethical position of harvesting organs from executed prisoners. What’s more, the form of execution would have to be modified to preserve organs, keeping them in tact and healthy.

There are other ways to solve the donor shortage within the general population. The United Kingdom, for example, requires driver license applicants to answer a question about organ donation. It would even be possible to have an “opt out” process, with drivers automatically agreeing to donations unless they specifically refuse. In a civilized society, it is preferable to encourage the entire population to exercise their civic duties, rather than rely on the vulnerable and confined.

For more about this issue please explore Professor Gostin’s in depth works on the subject available below.

From a Civil Libertarian to a Sanitarian

‘Old’ and ‘new’ institutions for persons with mental illness: Treatment, punishment or preventive confinement?

Thematic Areas:

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The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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