December 30, 2010
"Kidney parole condition raises ethical questions"
The title of this post is the (slightly erroneous) headline of this AP article discussing the most notable feature of Mississippi Gov. Haley Barbour's decision yesterday (first discussed here) to condition a prisoner's release on "her donating one of her kidneys to her sister, a procedure which should be scheduled with urgency." Here are excerpts from the AP report:
A debate is unfolding over an unusual offer from Mississippi's governor: He will free two sisters imprisoned for an armed robbery that netted $11, but one woman's release requires her to donate her kidney to the other.
The condition is alarming some experts, who have raised legal and ethical questions. Among them: If it turns out the sisters aren't a good tissue match, does that mean the healthy one goes back to jail?
Gov. Haley Barbour's decision to suspend the life sentences of Jamie and Gladys Scott was applauded by civil rights organizations and the women's attorney, who have long said the sentences were too harsh for the crime. The sisters are black, and their case has been a cause celebre in the state's African-American community.
The Scotts were convicted in 1994 of leading two men into an ambush in central Mississippi the year before. Three teenagers hit each man in the head with a shotgun and took their wallets — making off with only $11, court records said.
After 16 years in prison, Jamie Scott, 36, is on daily dialysis, which officials say costs the state about $200,000 a year. Barbour agreed to release her because of her medical condition, but 38-year-old Gladys Scott's release order says one of the conditions she must meet is to donate the kidney within one year.
The idea to donate the kidney was Gladys Scott's and she volunteered to do it in her petition for early release. National NAACP President and CEO Benjamin Todd Jealous thanked Barbour on Thursday after meeting him at the state capital in Jackson, calling his decision "a shining example" of the way a governor should use the power of clemency.
Others aren't so sure. Arthur Caplan, the director of the Center for Bioethics at the University of Pennsylvania, has studied transplants and their legal and ethical ramifications for about 25 years. He said he's never heard of anything like this.
Even though Gladys Scott proposed the idea in her petition for an early release and volunteered to donate the organ, Caplan said, it is against the law to buy and sell organs or to force people to give one up. "When you volunteer to give a kidney, you're usually free and clear to change your mind right up to the last minute," he said. "When you put a condition on it that you could go back to prison, that's a pretty powerful incentive."...
Legally, there should be no problems since Gladys Scott volunteered to donate the kidney, said George Cochran, a professor at the University of Mississippi School of Law who specializes in constitutional matters. "You have a constitutional right to body integrity, but when you consent (to donate an organ) you waive that" right, he said....
Putting conditions on parole, however, is a long-standing practice. And governors granting clemency have sometimes imposed unusual ones, such as requiring people whose sentences are reduced to move elsewhere.
In 1986, South Dakota Gov. Bill Janklow commuted the sentences of 36 criminals, but only on the condition that they leave his state and never come back. In Florida, the governor and members of his cabinet voted in 1994 to reduce a convicted killer's sentence as long as he agreed to live in Maryland.
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if barbour runs for president, there's no way she's going back to prison for something outside her control (tissue rejection etc)
Posted by: . | Dec 30, 2010 7:03:13 PM
---Thought this only happened in China
Posted by: Benson Weintraub | Dec 30, 2010 7:21:10 PM
There are 50,000 middle aged people at the peak of responsibility and ability who die waiting for a transplant. All radically obstructive legislation and common law decisions should be swept away. As I hold the lawyer responsible for the 17,000 murders committed by its client each year, the over-regulation of transplant practices kills three times as many people. And, the lawyer is responsible for every single one of those murders by regulatory obstruction.
First, any sensitivity or deference granted by the mass murdering lawyer to religious feelings of family members against donation violates the Establishment Clause. Second, the death of transplant candidates is highly predictable, thus, the tort of regulatory obstruction resulting in an unnecessary death should be subject to exemplary damages.
Second, the donor organ has great monetary value, including to the government. Dialysis for a year, $250K with very poor function of the patients, and repeated expensive hospitalizations. Transplant maintenance, $100K, with the donee returning to work and paying income taxes, getting the family off welfare, with much fewer re-hospitalizations. Therefore donors, including relatives of cadaver donors, should be compensated a fair market value for their organ and the pain and inconvenience of donation. The fair market price would be an auction price, open to the international market, e.g. on Ebay. Those who find the idea distasteful should be made to sit by the bedside of the waiting transplant candidate as he cools, and forced to watch the grief of the bereaved family. The heartless lawyer should not be allowed to evade the consequences of the extremist over-regulation of transplant organs.
Thirdly, condemned death penalty prisoners should be offered fair compensation and privileges in return for not opposing the presumed consent that new statutes should establish. This is an opportunity for those who have taken lives to save lives.
Posted by: Supremacy Claus | Dec 30, 2010 8:47:40 PM
It seems to me that it doesn't really matter that it was the sister's idea in the first place -- it is still an inherently coercive arrangement by virtue of the state's relationship to its prisoners. I'm sure there are many prisoners incarcerated at prisons around this country that would gladly give up their kidneys, or other body parts, in exchange for a chance at freedom - that doesn't mean that, just because they're going along willingly, there are no ethical issues to consider.
Posted by: Guy | Dec 30, 2010 9:32:58 PM
Whether I agree with it or not, the Kelo decision permits the taking of private property (of course, after fair market compensation) for the better use by a private party. That means, the taking need not be for a public project but can be for a private one that generates a public good, such as greater tax revenue. The argument is made that even if the taking is for a public road, most of the cars and trucks using the road will be doing so for private benefit, anyway.
I invite people to read the decision. It uses the word property over 100 times. It never uses the adjective, "real" with "prpperty." That means, the Kelo decision applies to chattel, such as an organ. I hope that the careful wording of the Kelo decision will be considered to rebut any appellate challenge to this conditional release.
Posted by: Supremacy Claus | Dec 31, 2010 5:44:46 AM
A gender bias may be in operation here. This case involves female prisoners. Most prisoners are male.
Roe v Wade was really a Ninth Amendment case, less about privacy or the Fourth Amendment. A clinical decision was arrived at between the female and the doctor. A state law interfered. The duly enacted law had to go if it inconvenienced feminist personal preference. But because most prisoners are male, this case will generate screams to regulate the donation of personal property, by male prisoners. In Roe, a viable person, protected by the Fifth Amendment had to go.
Posted by: Supremacy Claus | Dec 31, 2010 10:15:43 AM
You may want to look at Moore v. Regents of UCLA which indicates that what we would think of as normal property rights do not apply to organs and body parts.
Posted by: Guy | Jan 1, 2011 2:24:39 PM
Guy: Thanks for the challenging reference.
Imagine yourself a heart transplant candidate. You lift your head off the pillow, and are out of breath due to heart failure. You did nothing to deserve this state but suffer a viral infection that attacked the heart. You are a Dad, a responsible worker, a former taxpayer, a former athlete. You love your family and life.
The opinion cited seems strained, and against the interest of the above patient. Are you more likely or less likely to benefit from the likelihood that your doctor will get massively rich from a discovery of a method of treatment, such as growing a heart from stem cells? Are you more likely to benefit if the family possessor of a chattel, the corpse of a young car crash victim, is paid handsomely for their chattel?
By the benefiting of the above transplant candidate, what happens to the public interest? The $million a year medical bill drops to $100K. The patient returns to work, paying taxes, and enjoying family and physical exercise.
The imposition of the bias of the Justices also violates accepted contract law. Was the cover up of economic interest of the doctor an unilateral mistake? If that is the case, that is true of every contract. Both sides believe they are ripping off the other side. The opinion protected mutual mistake, the lab cannot know if a sample will have future economic value. The disclosure to every patient would be burdensome. The modification of a contract with a mutual mistake itself has no policy justification. A deal should be a deal, no matter what. If the doctor has a fiduciary duty to reveal conflict of interest, there is no point to having a contract, which is a promise to be kept in the future even if the interest has shifted, and performance is against interest. To appease and be charitable, the doctor should compensate the patient whose tissue enriched him, out of compassion, not legal obligation.
No one is representing the interest of the future medical beneficiaries, nor of the public. I am advocating for the superiority of those interests over all others. They are best served by market forces, by presumed consent, re-enforced by Kelo, and by current contract doctrine.
Posted by: Supremacy Claus | Jan 1, 2011 8:10:29 PM
What keeps getting left out is that it would seem the clemency grant is illegal under NOTA. Section 301 of NOTA prohibits the acquisition, sale or transfer of any human organ for transplantation for valuable consideration,upon penalty of up to a fine of $50,000 and five years imprisonment. 42 U.S.C. § 274e (2008). Commutation of sentence appears to me to be "valuable consideration." Apart from the debate over whether the statute should be repealed (and a good Googler will figure out where I stand), what does it mean for a commutation to have been issued in violation of federal law? Anything? It is certainly unlikely the Governor will be criminally prosecuted.
Posted by: Deborah G | Jan 3, 2011 10:38:59 AM
true deborah but we all KNOW the law DOESNT' APPLY to our own little criminal govt no matter what lvl.
Posted by: rodsmith | Jan 4, 2011 4:11:48 PM
Gov. Haley Barbour possibly followed the King’s Star. Will he find a new born idea of common sense in Incarceration Nation, will he? Possibly he need two other, allies Kings to make out the right Star in nation with world wide highest prisoner rate, happy sentencing and merciless claiming for security reason. We must not discuss deeds and trial and finding within present public opinion. Be content with. But wonder about parole period may be permitted.
Act of grace is an act of humanity. “He found in the temple area those who sold oxen, sheep, and doves, (let’s add human kidneys!) as well as the money changers seated there. He made a whip out of cords and drove them all out of the temple area, with the sheep and oxen, and spilled the coins of the money changers and overturned their tables, and to those who sold doves he said, ‘Take these out of here, and stop making my Father’s house a marketplace’” (John 2: 13-16). If a nation is not familiar with Separation of Powers as a base for democracy citation of non legal sources might be permitted – and helpful.
(Member of Registered Society within Association for Probation and Offenders' Assistance in fed state of Germany)
Posted by: Francis | Jan 9, 2011 9:41:34 AM