The gravity of crime, conduct of the convict, and the opinion of stakeholders should be the only consideration made by juries when they determine a death sentence, not the potential benefits from the convict’s body parts. This is one of the primary legal/ethical arguments made against the issue of death row victims being allowed to donate their organs upon execution. Over and above legal debate however, this subject has been put to psychological debate, medical debate and even bioethical debate. The commentators in the issue have varied from the death row inmates themselves, their loved ones who need organ donations as well as different professionals (Lin et al., 2012). Further, there are also practical barriers to the actual process of organ donation based on how executions are carried out in America. As the debate continues to range, no consensus has been reached. However, with there being no law expressly forbidding the practice, the current trend on organ donation by death row inmates is mainly controlled by practicability and efficacy even as the legal and ethical debate rages on.
The Legal Issues
The practice of organ donation in America falls under the ambit of The National Organ Transplant Act of 1984 as variously amended as well as the Uniform Anatomical Gift Act (UAGA) whose latest version is of 2006 (Smith, 2015). However, UAGA only applies to the states that have ratified it. These laws have the combined effect of providing the modalities under which body parts and organs can be offered and/or gifted for transplantation or research and what manner of incentives are allowed in return for the parts. However, both laws are silent on the issue of death row inmates providing organ transplant. In a free society, whatever is not prohibited by an express law is considered as legal for all intents and purposes (Lin et al., 2012). However, the law expresses any acts or omission that would interfere with the sanctity of a death row inmate prior to execution. This is because once a person has been sentenced to death for all practical purposes, the person’s death should only be occasioned by the means prescribed by law or unavoidable natural occurrences (Berger, 2014).
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In this regard, the harvesting of the organs of a death row convict can only be done post mortem. This is the only direct legal limit and restriction to the donation of organs specific to death row victims. However, a secondary argument has arisen about the general effect of death row victims being allowed to donate organs upon the criminal justice system. In a majority of American states, after a person has been convicted for a capital offence, a second hearing is done to determine for and against the death sentence (Berger, 2014). The rules in this procedure are more lax and allow a lot of latitude to the jury while greatly reducing the supervisory powers of the judge. Allowing the jury to consider the secondary benefits of a death sentence such as availability of organs for donation would be prejudicial to this process according to legal commentators (Berger, 2014).
The Psychological Argument
The psychological argument relating to the subject is limited to the issue of informed consent. The law provides that any organ donor or gifted must do so upon certifiable informed consent. This has two major implications. The first is that the consent so given must be done without any undue influence or coercion. Secondly, the consenting party must be qualified to give the consent (Gostin, 2013). Psychologists have argued that the imminence of an ignoble death and the guilt of the crimes committed can put so much pressure on a death row inmates as to render them non compose mentis. Under the circumstances, any consent given by these inmates would be invalid. Further, the guilt combined with the religious concept of judgment after death would place undue influence on the convicts to do good and thus make them more agreeable to donate organs (Gostin, 2013). This perspective seems to be against organ donation by death row convicts.
The Medical Argument
Many people in America die while waiting for viable donors of vital organs more so when the organs can only be provided upon death such as a heart or liver. Many others have been travelling to other countries such as India where purchasing of donor organs is legal thus compromising on health standards (Ambagtsheer et al., 2015). This is because there is an organ deficit in the American healthcare system and no viable way of extenuating the situation due to the legal barriers against buying organs as aforesaid. It is for this reason that most medical practitioners broadly support organ donation by death row inmates if only to increase the number of donor organs available for suffering Americans (Ambagtsheer et al, 2015).
However, there is still the issue of the viability of the organs which has made some medical practitioners oppose the practice. Among the primary issues is the high propensity for infections among all inmates. Further, over half of the death row inmates in the USA are over 50 years of age and with increased age comes a higher propensity for infection or damage for most organs (Smith, 2015). An infected organ such as a bone fragment can have major adverse implications on the recipient. This has however, been countered by the argument that contemporary clinical procedures allow for ease of detection for all forms of infections. Further, the general health of death row inmates is pristinely maintained to keep them alive and healthy for the executions (Berger, 2014). This debate is still ongoing.
The Practical Argument
This argument is based on the practicability of transplanting the organs from a death row inmate to a recipient in a viable manner. As aforesaid, when a person has been sentenced to death, the law demands that it be ascertained that the person died through legal means. In America, this legal means is lethal injection and a doctor has to ensure that the convict died from this means without any secondary assistance. Therefore, anyone who needs to harvest organs from an executed person must wait for 10 to 15 minutes for a government physician to ascertain that the convict is indeed dead (Smith, 2015).
Ordinarily, organs of people who are brain dead remain valid for a considerable amount of time enough to allow for excision, transport, and transplantation. However, if a donor suffers a circulatory death (DCD) such as asphyxiation, the viability period for organs is highly reduced. Unfortunately, the chemical cocktail used in the lethal injection to wit sodium thiopental, pancuronium bromide, and potassium chloride trigger DCD. This, combined with the 10 to 15 minutes wait before commencing excision exponentially reduces the chances of any organs being viably transplanted under the current execution procedures. Finally, the absence of proper facilities at the execution sites exacerbates the situation (Smith, 2015).
The Bioethical and Ethical Arguments
Bioethics relates to the ethical aspects of biological sciences hence regards what is considered right or wrong mainly from a moral perspective. From a general perspective, both the American Medical Association (AMA) and the America Society for Anesthesiology are opposed to any participation in executions by their members from a bioethical perspective (Ambagtsheer et al, 2015). This stands in the way of a possible solution to the practical problems of organ donation by death row inmates through conducing executions in hospitals where proper facilities are available for transplant immediately after confirmation of death. Another ethical argument is that death row inmates are an anathema to society and the sentence is meant to be a deterrent to other societal members who may want to ape the conduct that caused the conviction and sentencing. This is why the death sentence is reserved for the most aggravated crimes such as raping and killing of children and individuals who show no remorse (Berger, 2014).
Allowing such individuals to donate organs seemingly martyrs them and invalidates the entire conviction process. The execution process is very expensive to the American taxpayer. The costs include the pristine conditions that the convicts are kept at sometimes for tens of years, the appellate process, and the execution itself (Smith, 2015). The argument is that this process should be done right and pass the right message not create martyrs out of the worst of criminals in such an expensive way. From a moral perspective also, some people would consider convicts as sinners and social misfits whose body organs should not continue to live on in the bodies of those who get them. This argument is mainly focused on major transplants such as heart transplants, an organ which some faiths such Christianity gives a spiritual value to (Robertson, 2013).
A personal Perspective
A dying child who needs a lung, heart or liver does not know any laws, ethics or moral doctrines. The only thing that matters to the child is life and death not the political correctness of the procedure. Further, albeit American laws expressly prohibit organ purchasing and kindred bioethical issues, international laws make the right to life and the right to preservation of life a fundamental and unalienable right. It is an open secret that those who travel to India for organ transplants pay for most of the organs yet the government turns a blind eye in honor of the right for presservation of life (Ambagtsheer, et al, 2015). Similarly, the focus on the subject of donor organ transplant should shift from the donor to the recipient. It should always be about saving lives not about politics, religious doctrines, and political correctness. A popular saying goes that the dead only know that it is better to be alive. The executed convict is already dead, let the only subject remaining be about the living and the saving of life.
Organ donation by death row inmates cannot be considered as a simple subject as there are so many prevalent variables. With regard to legal barriers, these are arguments that can only discourage but not impede the practice. However, the propensity for discouragement is heightened by the creation of practical barriers to the practice. From an analytical perspective, a death row convict who readily agrees to give up an organ to another person does not have any express legal barriers impeding the donation. However, this donation can only be done when the convict is dead as a life donation can be considered to have negated the execution process. This brings to fore the preposterous notion of keeping someone alive and healthy so as to kill them properly.
Further, the capacity to give consent has also been questioned from a psychological perspective. It is however, the practical barriers that create the greatest impediment to donation of organs by death row inmates since the process used for executions exponentially reduces the viability of organs by depriving them of oxygen. This increases the speed of organ death thus reducing the chances for proper excision and transfer. Conducing executions in hospitals would extenuate this, but legal and bioethical implications do not allow for this solution. However, with so many Americans dying because of lack of viable organs and others having to travel to third world countries to buy organs and save their lives, a system that intentionally waste viable and available organs must be wrong.
Ambagtsheer, F., Van Balen, L. J., Duijst‐Heesters, W. L. J. M., Massey, E. K., & Weimar, W. (2015). Reporting organ trafficking networks: a survey‐based plea to breach the secrecy oath. American Journal of Transplantation , 15 (7), 1759-1767.
Berger, E. (2014). Lethal injection secrecy and eighth amendment due process. BCL Rev. , 55 , 1367
Gostin, L. O. (2013, April 25). Should prisoners be allowed to donate their organs? The Opinion Pages . Retrieved from http://www.nytimes.com/roomfordebate/2013/04/25/should-prisoners-be-allowed-to-donate-their-organs
Lin, S. S., Rich, L., Pal, J. D., & Sade, R. M. (2012). Prisoners on death row should be accepted as organ donors. The Annals of Thoracic Surgery , 93 (6), 1773–1779. doi:10.1016/j.athoracsur.2012.03.003
Robertson, J. A. (2013). Paid organ donation and the constitutionality of the national organ transplant act. Hastings Constitutional Law Quarterly, 40 (2), 221- 276
Smith, S. F. (2015). Lethal Injection, Politics, and the Future of the Death Penalty: The Shifting Politics of the Death Penalty: Has the" Machinery of Death" Become a Clunker? U. Rich. L. Rev. , 49 , 845-1321.