Life, Death and the Law of in-between: Organ Donation from Death Row Inmates in the US

Prisoners await their executions every day. They live on borrowed time but not with borrowed rights. However, medically, their prerogatives cast two unalike problems into the spotlight: firstly, should they be able to be organ recipients and secondly, should they be allowed to donate organs following their death?

The first issue has been directly addressed. In the US, death row inmates are equally as eligible for transplants as the rest of the population without discrimination. This principle was established in Estelle v. Gamble in 1976 when the Supreme Court ruled that ‘’ deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain”. There is an ongoing debate regarding whether this possibility is fruitful since, by nature, an imminent certain death will undoubtedly result in organ waste, however, the law is lucid on the subject and fortunately prisoners in need of medical care can, currently, legitimately be placed on waiting lists.

The second matter is not as definitive. Not even theoretically, is post death row organ donation completely manageable due to the medical challenges it implies.  First of all, the average age of death row prisoners is 50, rendering their organs unfeasible for transplantation. Secondly, most executions are carried out via lethal injection, putting the organs at risk of hypoxia between the time of death and the harvesting operation. Although a large number of inmates have been vocal about donating after the execution, the facilities that carry out the death sentence are not equipped accordingly and adapting them to such new practices would be costly. As for the ethical implications, some argue that allowing these types of donations would infringe the “morality of capital punishment” and recycling life would tamper with the social retribution that justifies death sentences.  The economical argument seems insufficient and easily refutable given that since 1970, China’s entire donation system has relied on prisoners’ organs. In theory, a cost-effective system is thus achievable.

In 1995, Steven Shelton donated a kidney to his mother before his execution in Delaware.  In 2003, Christian Longo was sentenced to death and, aware of this, he began a campaign advocating for donations. He even pushed for a Utah law permitting general prisoners (the non-death row kind) to donate. He also runs a webpage (Gifts of anatomical value from everyone-G.A.V.E) promoting the right to donate for fellow inmates. You can find out more and support his cause by visiting this link.

More recently, Ronald Phillips received a stay of execution until July 2012, in anticipation of the governor of Ohio’s decision regarding whether he was able to donate a kidney and his heart following his execution.  His case is complex and the outcome will definitely contour a new practice in the US.  Presently, laws tend to differ depending  on the state in question: in New Jersey prisoners are prohibited to donate while serving their sentences but can register to donate upon death. In Louisiana, there is no express prohibition whilst in Texas, there is a protocol already set in motion for general prisoners with a subsisting prohibition of donation for death row inmates.

Since 1959, most states have passed judgments denying death row inmates the right to donate. A notable case reflects Thomas Marra’s views: the prisoner stated that by interfering with his choice of organ donation, the government is thereby violating his “right to die”. He argued that he should be assisted in his suicide, rendering his wish to donate a reality and his organs viable. His request was denied due to state laws regulating execution procedures.

Nevertheless, he raised a contemporary and innovative question: do we have a right to die? If not, should we and should it become a basic, inalienable and inviolable human right? In several jurisdictions, the right to die is equivalent to voluntary euthanasia. International instruments have not touched this subject given the density it entails: a right to die might be incorporated in the right to life, since death is the biological limit of the right to life and its legal ramifications.

Yet, given the amount of reported botched executions and traumatic and cruel experiences death row inmates have suffered, the international community should take a stand and create a legal mechanism to ensure that executions are carried out in a dignified and torture free manner. Moreover, the difference between being sentenced to ‘’death’’ or ‘’assisted suicide’’ resides in semantics and a legal argument could be made for the latter given its immense contribution to life saving procedures. By doing so, States would ensure the right to life of organ recipients and at the same time the hypothetical right to die of death row inmates. Personally, I see no convincing legal justification for denying requests of organ donation upon death. States that allow death sentences should invest in such practices, making transplants possible by visiting the idea of assisted suicide or designing a coordinated system in response to existing medical and economical challenges.

No matter the quantity of arguments I read or hear, I don’t deem the death penalty to be beneficial for society and as such, I strongly recommend against it. However, I do consider that if we do make use of it, we should do it accordingly, putting next to death the same adjectives we’ve been putting next to life in the human rights discourse: free, dignified and secure. I believe death row inmates can have the freedom of choice as to determine their organs disposability once the State has carried out its punitive mandate. I also believe we must urgently produce international regulations regarding execution procedures and their alignment with human rights standards. Yes we can?!  We can always hope…

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