Michael Zoosman, the co-founder of an advocacy group called L'chaim: Jews Against the Death Penalty, first became involved in the case of Ramiro Gonzales, a man on death row in Texas, after writing a letter to Gonzales last year; something his organization does routinely for inmates with scheduled execution dates. During their correspondence, Zoosman mentioned that a congregant needed a kidney. Although not a match, rather than give up, Gonzales still wanted to be a "Good Samaritan" donor, giving to someone with whom he did not have a connection, something that Zoosman said "demonstrates the inherent humanity of the people that we are seeking to kill."
Gonzales initially requested a stay of execution so he could make the donation. That request was denied, although he did eventually receive a stay because of a concern about an expert witness from Gonzales' murder trial, who has since admitted that his testimony was flawed. The resulting stay gave extra time for another potential recipient, with matching blood type, to send a letter to Governor Greg Abbott on July 10. "I cannot emphasize enough what a precious gift you would be giving someone if you allowed Mr. Gonzales the opportunity to donate his kidney." Were she to receive a new kidney, she would be freed from her own prison of dialysis, but the Texas Department of Criminal Justice denied the request, citing concerns that the surgery could "possibly [interfere] with the court-ordered execution date" and that the prison system might be unable to cover the costs of the procedure.
In prison, Gonzales has said it is his mission "to be instrumental in the lives of people" to make up for his 2001 crime, the kidnapping, rape and murder of an 18 year old girl whose body was not found for 2 years. Months after his execution was stayed, it is still unclear whether the Texas Department of Criminal Justice will permit him to donate an organ, and he obviously cannot do so without its consent and assistance. If it denies his request, now that the execution has been indefinitely delayed, it will also deny someone desperately in need. It is estimated that a dozen people die each day for want of a kidney, not to mention those removed from the list because they fell too ill to tolerate transplant surgery while waiting. With the crisis this acute, you might ask why are we depriving recipients of a chance at life—and donors a chance to do good.
For prisoners, becoming a donor can be especially difficult. The federal prison system, for example, does not permit posthumous donations and, like some states, limits living donations to immediate family members. I understand that some countries recover organs from executed prisoners and that organ brokers, for a considerable fee, arrange for transplantation.
To be clear, I am not advocating for posthumous donation. The proposals that concern organ recovery from executed prisoners unveil their own sets of problems. One method of execution suggested is the act of organ donation itself. From a utilitarian standpoint this could make sense; the anesthetizing of the condemned and the recovery of organs in the usual manner would produce optimum organs for transplantation, but the cross-clamping the aorta and the ensuing cardiectomy, followed by the disconnection of the ventilator, create an unacceptable situation for the organ recovery team, placing it in the role of executioner. In China, where more than 5,000 prisoners are executed annually, and organs are harvested for transplantation, prisoners are executed via a gunshot wound to the temple, and declared dead, rather than rely on the usual definitions of brain-death or circulatory-death. This process of execution, without consent for organ procurement, as well as a lack of confirmation of brain death, leaves much to be desired.
I have also seen proposals in the United States that would allow condemned prisoners to be offered the option of trading a kidney or their bone marrow in exchange for a commuted sentence of life in prison without parole. Any law or proposal that allows a person to trade an organ for a reduction in sentence, particularly a sentence from death to life in prison, raises numerous ethical issues. With an inequitable application of the death penalty due to racial bias and economic disadvantage, I would suggest that these types of proposals would be especially coercive to particular classes of individuals–minorities and the poor. Were the trading of a life for a kidney permitted, the actual imposition of the death penalty could even be affected. As one commentator suggested, with greater publicity surrounding these types of proposals/laws, potential jurors could be influenced and ultimately impose the death penalty more often with a potential societal benefit in mind, indeed even hoping that the convicted persons would choose to trade his kidney for his life.
Another problematic issue in the use of organs from death row inmates is the ethical dilemma of obtaining organs from patients who are due to be executed. Prisoners are subject to physically and psychologically stressful conditions, which undoubtedly affect the decisions they make. The Uniform Anatomical Gift Act requires that all organ donation be provided without coercion, but prisoners are particularly vulnerable to both direct and implied coercion as a consequence of their incarceration. For example, as pointed out by The National Institute of Health, the Code of Federal Regulations regarding prisoner consent (45 CFR 46, subpart C) explicitly acknowledges this coercion: "Prisoners may not be free to make a truly voluntary and uncoerced decision... the regulations require additional safeguards." Bioethicists often cite organ procurement in the setting of such coercion as a reason to avoid the use of executed prisoners as organ donors. In addition, the American Society of Transplant Surgeons states that the use of organs from executed prisoners is unacceptable and that procurement under these circumstances violates the basic principles of transplantation.
In truth, any trade has its problems. Eliminate the death penalty as a consideration of eligibility and allow the donation for a reduced sentence. Would the reduction in sentence apply to the offer to donate, or would it only be honored if the act of donation actually took place? What if the donor was not mentally stable enough to make that choice or had some other condition that made him unsuitable?
In the case of Mr. Gonzalez, he is not asking for any consideration; nor is he trying to bargain. The 30-day stay he sought was necessary to accommodate the kidney transfer-no more and no less. Gonzales has a rare blood type, making a potential donation especially valuable.
If he got the satisfaction that he had helped another human being to live, should we nevertheless deny him despite the fact that his donation could save an innocent life? Judy Frith, a potential recipient of the kidney, explained that the wait for a kidney with her and Gonzalez's blood type is up to six years. "It's very rare to find somebody that wants to do a live donation in the first place. It's very brave. I think it would be a shame if Mr. Gonzales wants to do that, and he's not allowed to," Frith said.
I agree.
Originally Published by Connecticut Law Tribune,
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