The Mississippi Decision Exchanging Parole for Kidney Donation: Is This the Beginning of Change for Altruistic-Based Human Organ Donation Policy in the United States?
2011; Elsevier BV; Volume: 86; Issue: 5 Linguagem: Inglês
10.4065/mcp.2011.0109
ISSN1942-5546
Autores Tópico(s)Reproductive Health and Technologies
ResumoGovernor Haley Barbour's recent decision to indefinitely suspend the life sentences of 2 Mississippi sisters convicted of a 1994 armed robbery drew considerable media attention worldwide.1Herbert B For two sisters, the end of an ordeal.New York Times. December 31, 2010; (Accessed March 24, 2011.)Web site. http://www.nytimes.com/2011/01/01/opinion/01herbert.html?_r=1Google Scholar, 2In Miss. Sisters' parole depends on kidney donation. All Things Considered.NPR Web site. http://www.npr.org/2010/12/30/132488858/In-Miss-Sisters-Parole-Contingent-On-Kidney-DonationDate: December 30, 2010Google Scholar, 3Gabbatt A. Sisters granted parole in return for kidney donation. Guardian.co.uk Web site. December 31, 2010. http://www.guardian.co.uk/world/2010/dec/31/mississippi-sisters-parole-kidney. Accessed March 24, 2011.Google Scholar Jamie and Gladys Scott were reported to be traveling in a car with 2 men. When Jamie feigned illness, the driver of the car pulled over to the side of the road, at which point 3 men who had been following in a car behind robbed the 2 men at gunpoint. The 3 men who were arrested along with the Scott sisters pled guilty and were sentenced to shorter prison terms in exchange for testifying against Jamie and Gladys. That the women were black, living in the South, and sentenced to what many thought a harsh prison term for a crime netting a mere $11 prompted critical social examination. Health care professionals and bioethicists alike were further drawn to an element of Governor Barbour's decision that crossed into the realm of long-standing organ transplant policy. At the time of the suspension, Jamie was undergoing dialysis treatment at an annual cost to the state of $200,000 and was scheduled for early release because of her need for a kidney transplant. According to the governor's office, in her petition to the Mississippi parole board for early release in 2010, Gladys voluntarily offered to donate her kidney to her incarcerated sister.4Social and political pressure brought about freedom for the Scott sisters? EURWeb.http://www.blackwebportal.com/wire/DA.cfm?ArticleID=7515Google Scholar The governor explained that, after the sisters' request for early release, the Mississippi parole board recommended against either a pardon or a commuted sentence. On further review of the sisters'case, the board determined that the Scotts were no longer a threat to society and granted an indefinite suspension of their sentences.4Social and political pressure brought about freedom for the Scott sisters? EURWeb.http://www.blackwebportal.com/wire/DA.cfm?ArticleID=7515Google Scholar Gladys' indefinite suspension, which state officials describe as equivalent to parole, requires her to donate her kidney to her 36-year-old sister within 1 year after her release. The governor reportedly has said that the kidney donation “should be scheduled with urgency.”4Social and political pressure brought about freedom for the Scott sisters? EURWeb.http://www.blackwebportal.com/wire/DA.cfm?ArticleID=7515Google Scholar At the time of the sisters' release from the Mississippi Department of Corrections facility on January 7, 2011, no information was available as to tissue compatibility or other potential limitations to the prospect of a medically optimized transplant. Although the governor has yet to publically announce whether he will require the sisters to return to prison in the event of a failure to proceed with the conditioned kidney transplant, NAACP (National Association for the Advancement of Colored People) President Benjamin Jealous stated that, during his meeting with the governor, he was told that Gladys will not go back to prison if her kidney is not a match.5Thompson K ‘Conditioned on’ kidney donation, sisters' prison release prompts ethics debate. Washington Post.http://www.washingtonpost.com/wp-dyn/content/article/2010/12/30/AR2010123002930.html?wprss=rss_nationGoogle Scholar The purpose of this article is to evaluate the recent decision made by Mississippi state officials in the context of current organ transplant legislation. A brief description of the theoretical concepts that involve criminal punishment and parole affords a better appreciation of whether the Mississippi decision aligns with the traditional goals established by the criminal justice system. The criminal justice market and the market for human organs are compared. Examining prior legislative efforts assists in unmasking the potential conflict introduced by combined decisions involving the criminal justice system and human organ transplant donation. Finally, this article argues that, although the State of Mississippi decision, and any further public reaction that follows, may offer some preliminary insight as to a willingness to deviate from purely altruistic motives regulating solid organ donation in the United States, it will likely fail as the first true test of a criterion for change. Theories justifying punishment of criminal activity fall into 2 broad categories of thought: retribution and utilitarian.6Dressler J Cases and Materials on Criminal Law. 3rd ed. Thomson West, St. Paul, MN2003Google Scholar Retributivists base their rationalization for punishment on the principle that people who commit crimes deserve to be punished (“an eye for an eye”).6Dressler J Cases and Materials on Criminal Law. 3rd ed. Thomson West, St. Paul, MN2003Google Scholar, 7Burke PB Current Issues in Parole Decisionmaking: Understanding the Past: Shaping the Future. US Dept of Justice, National Institute of Corrections, Washington, DC1988http://nicic.gov/pubs/pre/007017.pdfGoogle Scholar It is a backward looking approach of punishing what has already been committed.6Dressler J Cases and Materials on Criminal Law. 3rd ed. Thomson West, St. Paul, MN2003Google Scholar The goal of retribution is to counter the advantage the criminal has seized by refusing to live within the laws of society.6Dressler J Cases and Materials on Criminal Law. 3rd ed. Thomson West, St. Paul, MN2003Google Scholar Popularized by Immanuel Kant during the 18th century, retribution notions strongly influenced the drafters of the US Constitution.6Dressler J Cases and Materials on Criminal Law. 3rd ed. Thomson West, St. Paul, MN2003Google Scholar, 7Burke PB Current Issues in Parole Decisionmaking: Understanding the Past: Shaping the Future. US Dept of Justice, National Institute of Corrections, Washington, DC1988http://nicic.gov/pubs/pre/007017.pdfGoogle Scholar With the retribution theory, behavior while incarcerated, future risk of criminal acts, and plans for activities after release are all made irrelevant to the choice of punishment.7Burke PB Current Issues in Parole Decisionmaking: Understanding the Past: Shaping the Future. US Dept of Justice, National Institute of Corrections, Washington, DC1988http://nicic.gov/pubs/pre/007017.pdfGoogle Scholar Retribution, or “just desserts,” was a popular method of criminal punishment until the 1980s, as reflected by lengthy prison terms and limited chance for parole.7Burke PB Current Issues in Parole Decisionmaking: Understanding the Past: Shaping the Future. US Dept of Justice, National Institute of Corrections, Washington, DC1988http://nicic.gov/pubs/pre/007017.pdfGoogle Scholar On the basis of a backward looking approach model, retribution could place a temporal length on punishment without the need for future term adjustment through parole processes. In contrast to retribution bases for criminal punishment, utilitarian theories use a forward looking approach.6Dressler J Cases and Materials on Criminal Law. 3rd ed. Thomson West, St. Paul, MN2003Google Scholar Utilitarians validate the need for punishment by referring to the alleged benefits that accrue after implementation.6Dressler J Cases and Materials on Criminal Law. 3rd ed. Thomson West, St. Paul, MN2003Google Scholar Three fundamental paradigms are within the boundaries of utilitarian punishment theory.6Dressler J Cases and Materials on Criminal Law. 3rd ed. Thomson West, St. Paul, MN2003Google Scholar General deterrence acts on the assumption that a person's awareness of the risk of punishment after a crime will reduce the likelihood that he or she will commit a future crime. Incapacitation restricts a criminal's ability to commit a future crime against society by removing him or her from the public forum. Finally, and perhaps of most interest to the public, the goal of utilitarian theory is to use punishment as a means of reform. Similar in some respect to utilitarian incapacitation concepts, reform efforts act to protect the public by changing the mindset of the criminal, rather than simply removing the criminal from the victim-rich environment. Because punishment works to mitigate the risk that the criminal presents to society, utilitarian theory offers a better association with truncating prison terms through parole measures than does its retribution counterpart.7Burke PB Current Issues in Parole Decisionmaking: Understanding the Past: Shaping the Future. US Dept of Justice, National Institute of Corrections, Washington, DC1988http://nicic.gov/pubs/pre/007017.pdfGoogle Scholar Market concepts have been used to describe both the criminal justice sentencing system and human organ transplant programs.8Hughes JA You get what you pay for?: Rethinking U.S. organ procurement policy in light of foreign models.Vanderbilt J Transnational Law. 2009; 42 (Accessed March 24, 2011.): 351-381http://media.web.britannica.com/ebsco/pdf/603/36865603.pdfGoogle Scholar, 9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar In her 2009 law review article, Lee9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar explained how exchanges of guilty pleas for mitigated sentence terms could equate to market practices. Prosecutors are awarded ease of conviction in return for proposing truncated sentence terms. Criminals benefit from shorter incarceration terms in exchange for giving up both their right to trial by jury and their constitutional protections involving self-incrimination. Lee9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar classifies the criminal justice market as an “open” market because it allows for public oversight and accountability. Because most judges and public prosecutors who formulate terms of incarceration are voted into office, the public may refuse to reelect them if dissatisfied with their decisions. Criminal justice markets require less fixed regulatory oversight because they are visible, or open, to public scrutiny. In contrast to the criminal justice sentencing market, the human body parts market often requires substantial regulatory oversight.8Hughes JA You get what you pay for?: Rethinking U.S. organ procurement policy in light of foreign models.Vanderbilt J Transnational Law. 2009; 42 (Accessed March 24, 2011.): 351-381http://media.web.britannica.com/ebsco/pdf/603/36865603.pdfGoogle Scholar, 9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar The degree of openness in the human body market varies on the basis of the scarcity of the body part being exchanged.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar Some of the more common exchanges involving human body parts include those that are either plentiful or regenerated with reasonable ease (eg, hair, sperm, eggs, and blood). Blood donation must occur on a volunteer and uncompensated basis, whereas sperm and egg donors may receive payment in exchange for their product. Interestingly, some egg and sperm donors may benefit from a graduated payment system based on intelligence and beauty traits.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar The human organ market involves a product that is scarce and vital to continued life. As such, it is more regulated and therefore better described by closed market theories. The first piece of federal action impacting human organ donation in the United States was the Uniform Anatomical Gift Act (UAGA) of 1968.8Hughes JA You get what you pay for?: Rethinking U.S. organ procurement policy in light of foreign models.Vanderbilt J Transnational Law. 2009; 42 (Accessed March 24, 2011.): 351-381http://media.web.britannica.com/ebsco/pdf/603/36865603.pdfGoogle Scholar, 9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar, 10King PA Areen J Gostin LO Law, Medicine and Ethics. Foundation Press, New York, NY2006Google Scholar Despite its title, the UAGA could not be classified as either an act or legislation.11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar Instead, it was meant to serve as a model on which states could base their own statutes. Until that time, state laws varied in the handling of organ procurement practices.11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar Passage of the UAGA helped to reduce differences in state laws while simplifying the process with which people could become organ donors.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar, 10King PA Areen J Gostin LO Law, Medicine and Ethics. Foundation Press, New York, NY2006Google Scholar, 11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar Although the body of the text of the UAGA did not expressly address human organ sales, some have argued that the term gift used in its title was intended to prohibit monetary or other types of exchanges for organ donation.8Hughes JA You get what you pay for?: Rethinking U.S. organ procurement policy in light of foreign models.Vanderbilt J Transnational Law. 2009; 42 (Accessed March 24, 2011.): 351-381http://media.web.britannica.com/ebsco/pdf/603/36865603.pdfGoogle Scholar, 11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar In 1987, the UAGA was amended to expressly prohibit the sale or purchase of human body organs removed after death but did not address living organ donation.8Hughes JA You get what you pay for?: Rethinking U.S. organ procurement policy in light of foreign models.Vanderbilt J Transnational Law. 2009; 42 (Accessed March 24, 2011.): 351-381http://media.web.britannica.com/ebsco/pdf/603/36865603.pdfGoogle Scholar, 10King PA Areen J Gostin LO Law, Medicine and Ethics. Foundation Press, New York, NY2006Google Scholar, 11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar No similar commercial restriction was addressed by the updated UAGA for living organ donor exchange.11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar Unlike the earlier version of the UAGA that had been approved by all 50 states and the District of Columbia, the 1987 UAGA has been adopted in only 26 states.11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar After the antirejection drug cyclosporine was approved by the US Food and Drug Administration in 1983, human organ transplantation increased considerably.8Hughes JA You get what you pay for?: Rethinking U.S. organ procurement policy in light of foreign models.Vanderbilt J Transnational Law. 2009; 42 (Accessed March 24, 2011.): 351-381http://media.web.britannica.com/ebsco/pdf/603/36865603.pdfGoogle Scholar, 11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar, 12Linden PK History of solid organ transplantation and organ donation.Crit Care Clin. 2009; 25 (ix.): 165-184Abstract Full Text Full Text PDF PubMed Scopus (109) Google Scholar, 13Ruth RJ Wyszewianski L Campbell DA The future of kidney transplantation: the effect of improvements in survival rate on the shortage of donated kidneys.Med Care. 1987; 25: 238-249Crossref PubMed Scopus (2) Google Scholar A more equitable means of linking supply with demand for living organ donation was needed.8Hughes JA You get what you pay for?: Rethinking U.S. organ procurement policy in light of foreign models.Vanderbilt J Transnational Law. 2009; 42 (Accessed March 24, 2011.): 351-381http://media.web.britannica.com/ebsco/pdf/603/36865603.pdfGoogle Scholar, 11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar The 1984 passage of the National Organ Transplant Act (NOTA) was the first federal legislation promulgated to regulate human organ transplants. The champion of the bill, Representative Al Gore, Jr, of Tennessee, initially considered that future incentives may be necessary if organ supplies based on altruistic donation alone were short of demand.11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar However, during continued congressional debate over NOTA, fears that incentives may actually decrease organ supplies, lessen the quality of the organs, and possibly exploit the poor led to the addition of Section 301 to the bill.11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar Labeled as “Prohibition of Organ Purchases,” Section 301 made it “…unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce [italics added].”11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar, 14National Organ Transplantation Act http://livingdonorassistance.org/documents/NOTA.pdfGoogle Scholar With passage of NOTA, federal criminal legislation now exists that prohibits any ex change of living or deceased donor human organs for valuable consideration. In an attempt to increase the number of available human organs for transplant, South Carolina lawmakers introduced Senate Bill 480 (SB 480) in 2007.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar The core of the bill was to trim 180 days from a prisoner's sentence in exchange for donation of a kidney.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar Although SB 480 did not move past initial legislative procedural barriers, its introduction stimulates concern over possible conflicts that may arise when attempts are made to mesh the criminal justice markets with the human body part markets. If SB 480 had been passed by the South Carolina legislature, it likely would have survived legal scrutiny inherent in a criminal justice sentencing open market concept. As the proponent of the bill, Senator Ralph Anderson worked to reassure the public that government officials would ensure that prisoners' decisions were voluntary and made only after receiving all the information they required.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar The barriers confronting the legitimacy of SB 480 resulted from its conflict with human organ market limitations, rather than open market criminal justice restrictions.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar As the language of NOTA's legislation prescribes, human organs may not be transferred in exchange for valuable consideration. At its foundation, contract law requires an exchange of “consideration,” or a promise to provide something of value to one party in exchange for his or her promise to provide something of value in return.15Knapp CL Crystal NM Prince HG Rules of Contract Law: 2005-2006. Aspen Publishers, New York, NY2005Google Scholar In the case of SB 480, South Carolina government officials proposed offering a 180-day reduction in sentencing. In exchange, prisoners would be required to donate a kidney. Although state officials were not suggesting tendering money as valuable consideration, they were offering freedom or liberty from incarceration. As both the Fifth and Fourteenth Amendments of the US Constitution hold that liberty cannot be taken away without due process, there can be little doubt that liberty equates to valuable consideration in a free society.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar In the context of a prison inmate, freedom from incarceration may be an especially important element of value.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar Although exchanges of prison time for human organs may meet legal muster under criminal justice law open market sentencing concepts, strict compliance with NOTA's regulations would restrict such arrangements.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar Nine states have passed legislation that authorizes chemical or physical castration of convicted criminals.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar, 16Scott CL Holmberg T Castration of sex offenders: prisoners' rights versus public safety.J Am Acad Psychiatry Law. 2003; 31: 502-509PubMed Google Scholar In most of those states, consent to castration impacts an offender's eligibility for parole or probation.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar, 16Scott CL Holmberg T Castration of sex offenders: prisoners' rights versus public safety.J Am Acad Psychiatry Law. 2003; 31: 502-509PubMed Google Scholar Although the laws in the 9 states differ to a degree, they remain consistent by authorizing castration only after criminal activity involving some form of sexual victimization. Such a procedural process ensures a natural association between the crime and the punishment.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar Given that the proposed goal of castration is to help protect society from future harms, this type of punishment best falls within the framework established by utilitarian views. In her 2009 writing, Lee9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar argued that plea bargaining practices function under a market theory construct. Parole processes that truncate prison terms likely follow a similar market-based schema. Public officials regulate both initial sentencing decisions (plea bargaining) and eligibility for early release (parole). Public satisfaction with government decisions that involve criminal incarceration is measured through voter actions. Like their plea bargaining counterpart, parole decisions that involve exchange of human organs for transplant are likely legal under criminal justice standards.9Lee EC Trading kidney for prison time: when two contradictory legal traditions intersect, which one has the right-of-way?.Univ San Francisco Law Rev. 2009; 43 (Accessed March 24, 2011.): 507-557http://usf.usfca.edu/law/academic/journals/lawreview/printissues/v43i3/Lee.pdfGoogle Scholar NOTA's strict prohibition against a market exchange of human organs for valuable consideration is why the Mississippi state government's decision to truncate the sisters' sentence terms in exchange for Gladys' assurance may fail to meet legal muster. Analogous to the arguments presented during discussion of South Carolina's failed SB 480 legislation attempt, parole board decisions that involve a prisoner's freedom from incarceration may be equated to valuable consideration. A further ethical blow to the state of Mississippi's agreement with the Scott sisters arises from the lack of clear connection between the donation of a human body part and the theoretical goals of criminal punishment and parole. Although castration has been suggested to serve a utilitarian role of protecting society from a criminal's actions, no similar association can be drawn with the donation of a kidney by Gladys. The purpose of this article is not to offer my opinion as to whether the current laws that restrict compensation for donor organs should be amended. However, reactions of the public, bioethicists, and health care professionals to the decision by the governor's office and the Mississippi parole board may provide insight into society's willingness to favor future legislation that allows “payment” for organ donation. Many academics have written about the potential risks involved with compensation of donors through a free market system.8Hughes JA You get what you pay for?: Rethinking U.S. organ procurement policy in light of foreign models.Vanderbilt J Transnational Law. 2009; 42 (Accessed March 24, 2011.): 351-381http://media.web.britannica.com/ebsco/pdf/603/36865603.pdfGoogle Scholar, 11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar Examples of these concerns include coercion of donors, lack of adequate informed consent among donors, donors' misrepresentation of the health of their potentially donated organs, the poor disproportionally donating to the rich in need of an organ, financial suffering of the poor donor with increased health costs, and the potential for a decrease in overall organs donated if those who would otherwise offer organs for altruistic reasons become disenchanted by the commercial nature of the market.11Satel S When Altruism Isn't Enough: The Case for Compensating Kidney Donors. The AEI Press, Washington, DC2008http://www.sallysatelmd.com/html/aeibookflyer.pdfGoogle Scholar, 17Goyal M Mehta RL Schneiderman LJ Sehgal AR Economic and health consequences of selling a kidney in India.JAMA. 2002; 288: 1589-1593Crossref PubMed Scopus (291) Google Scholar, 18Jha V Paid transplants in India: the grim reality.Nephrol Dial Transplant. 2004; 19: 541-543Crossref PubMed Scopus (32) Google Scholar Whether these are tangible risks or the product of common myths further propagated by well-publicized stories in foreign countries of “organs for money” schemes is a topic for separate discussion. Many have argued that a well-structured and supervised free market for organs may offer an ethical and practical means of helping resolve the ongoing shortage of available human body organs supplied by altruistic donor pools.19Halpern SD Raz A Kohn R Rey M Asch DA Reese P Regulated payments for living kidney donation: an empirical assessment of the ethical concerns.Ann Intern Med. 2010; 152: 358-365Crossref PubMed Scopus (44) Google Scholar, 20Hippen BE In defense of a regulated market in kidneys from living vendors.J Med Philos. 2005; 30: 593-626Crossref PubMed Scopus (77) Google Scholar, 21Taylor JS Black markets, transplant kidneys and interpersonal coercion.J Med Ethics. 2006; 32: 698-701Crossref PubMed Scopus (9) Google Scholar The conditions involved with the indefinite suspension of Gladys' prison term stimulate concern that such an exchange of valuable consideration for consent to organ donation violates the restrictions imposed by NOTA. Although the Mississippi decision has the potential of stirring public debate over the future viability of a structured compensation exchange program for human organ donation, the unique features of the Scott sisters' case make it unlikely that any settled consensus will be met. Of note, Gladys is said to have voluntarily offered to donate her kidney to her sister Jamie. When describing her willingness to donate her kidney to her sister after her release on January 7, 2011, Gladys is reported to have said that “[the Governor] didn't even have to put that in the order ‘cause I was going to do that anyway.’”22Donate kidney—jailed Mississippi sisters freed. Nonprofit News Web site.http://www.onlinecardonation.org/charitynews/archives/142Date: January 17, 2011Google Scholar Whether these reports are an accurate assessment of Gladys' altruistic motives is not a topic that I feel at liberty to question. Had the State of Mississippi initiated a negotiation that offered Gladys an indefinite suspension in exchange for a kidney donation, public reaction might be viewed as reflective of acceptance or rejection of potentially coerced agreements. Further limiting possible public outcry is that the Scott sisters had already served 16 years for an $11 crime and that the Mississippi parole board concluded that they were no longer a threat to society. If instead Gladys had recently been imprisoned and remained a danger to society, the public's response to her release could more clearly signal society's willingness to accept the introduction of valuable consideration into transplant policy. Perhaps the greatest limitation in using the Scotts' case as a test case stems from the fact that Gladys' indefinite suspension may in fact not truly be conditioned on her consent to donate a kidney. Although the governor remains elusive in his answers as to what may occur if the Scott sisters are not an acceptable tissue match, NAACP reports suggest that the governor's office had already decided early on to forgo any requirement that Gladys return to prison.5Thompson K ‘Conditioned on’ kidney donation, sisters' prison release prompts ethics debate. Washington Post.http://www.washingtonpost.com/wp-dyn/content/article/2010/12/30/AR2010123002930.html?wprss=rss_nationGoogle Scholar With the Mississippi State government running at deficit levels, allowing the release of not only Jamie but also her potential kidney transplant donor Gladys could be viewed as a fiscally acceptable means of cutting future state incarceration costs. According to Mississippi Corrections Commissioner Christopher Epps, the State of Mississippi spent $50 million on inmate health care in 2010 alone.4Social and political pressure brought about freedom for the Scott sisters? EURWeb.http://www.blackwebportal.com/wire/DA.cfm?ArticleID=7515Google Scholar Given this annual expense, one could argue that the conditional release of Gladys may serve a utilitarian purpose by benefiting Mississippi's populus through economic savings. With the threat of continued criminal activity abated and the cost of continued confinement extreme, the question of whether the conditions placed on Gladys' indefinite suspension collide with transplant ethics may not be that important to the public. Time will tell whether it will be written that the governor's office, the Mississippi State parole board, and the Scott sisters were instrumental in initiating change to domestic human organ transplant policy. Although the unique aspects of this case may limit public debate on the topic of nonaltruistic organ donation, others more closely associated with the ethical and administrative components of transplant medicine may argue the merits and future impact of Mississippi's decision for some time. Although the true intent behind the decision to release Gladys from prison remains under debate, the condition requiring organ donation remains authenticated in the legal records and history of the state of Mississippi. Individuals or state authorities seeking to promote nonaltruistic organ donation policies will likely reference the Scott case as a positive or “shining” example of such a policy in action. In addition, while appreciating the unique features of the Scott case, parties to future arrangements that involve solid organ exchange may still benefit when studying the reaction it caused, or did not cause, as they test the boundaries of change.
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