Letting Life Spring from Death Row: Should Death Row Inmates Be Allowed to Donate Their Organs?

Eighteen people die each day waiting for an organ donation, and the organs of just one person are enough to save up to eight lives.  Yet, no state, nor the Federal Bureau of Prisons, permits a death row inmate to donate his or her organs upon death.  The current laws only allow living organ donations to members of the immediate family, with all costs carried by the inmate’s family.  Any donor order signed by inmate while incarcerated for general posthumous organ donation is deemed unenforceable.

Most recently, Christian Longo, convicted of murdering his wife and three children in 2001, petitioned to the Oregon Department of Corrections (Department) for the right to donate his organs after his sentence is carried out.  In return, he offered to give up his right to appeal.  The Department denied Longo’s request as organ donor officials and medical ethicists deemed Longo’s petition “morally reprehensible.”  Notably, the National Transplant Act of 1984 prohibits death row inmates from donating their organs if the donation was made for “valuable consideration,” including a reduced sentence.  “If I donated all of my organs today,” wrote Longo in the New York Times in March 2011, “I could clear nearly 1 percent of my state’s organ waiting list.  I am 37 years old and healthy; throwing my organs away after I am executed is nothing but a waste.”

Those opposing death row organ donations cite ethical concerns such as: whether it is possible to have a truly voluntary donation in prison; high instances of infections, such as HIV and hepatitis; but, most importantly, that the combination of three lethal drugs used in most states render organs unviable for transplant.  Many have cited the organ-harvesting program in China as a possible worst-case scenario of allowing organ donations in the U.S.  There, executions of death row inmates have often been hastened to keep up with the need for organs both officially and on the black market.  Exact figures are unknown, but it is possible that some death row convictions are questionably illegitimate as the demand for organs far outweighs the supply, and inmate organs make up sixty percent of the total supply of organs donations.  

Implying that improper death row convictions or hastened executions for the sake of organ harvesting may happen in the U.S. is utterly erroneous.  While in China death row organ harvesting comprises a state policy (which China has just announced it will phase out), allowing voluntary organ donation to death row inmates in the U.S. would simply afford them the same right over their bodies enjoyed by the rest of the population.  Any chance of transplanting infected organs is ruled out through mandatory blood tests done on all organs, including those donated by non-inmates.  And Ohio and Washington already use large doses of just one drug, a fast acting barbiturate that does not destroy organs.

There is no logical explanation why death row inmates should not be allowed to donate their organs.  In the case of Longo, there is no quid pro quo.  He requests no leniency, no pardon, and no better treatment.  Simply that he be allowed to exercise his right over his own body in deciding what happens to it after he has carried out his sentence.  But there is no reason for another person to have to die because he or she was not able to receive a perfectly healthy organ simply because the state said so.

Elena Gekker
Blogger, Criminal Law Brief

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