For years, human rights activists have rightly focused on the mainland's shady organ transplant trade, with executed prisoners being its primary supply source. America's prison systems may soon share China's unwanted spotlight, thanks to draft legislation being prepared by some state legislators in South Carolina.
A state senate panel has endorsed setting up an organ-and-tissue donation programme for inmates. Under the scheme, prisoners who volunteer a kidney or bone marrow could have their sentences reduced by 180 days. The state, according to health officials there, suffers from an acute organ shortage, hence the need to think outside the box.
The proposal, the first of its kind in the US, has bipartisan support within the state senate, but the senate subcommittee that deals with prisons is worried it may violate federal law. Federal law requires altruism to be the only motive for organ donation under the standard of 'valuable consideration', which aims to rule out any material gain as an incentive. It would be hard to argue a 180-day reduction does not amount to a 'valuable consideration'. The law's intention is obviously designed to make sure there can be no legal organ trade.
In a democratic state, there are only three legitimate reasons to imprison a person: to rehabilitate, to punish and/or to deter others. Offering sentence reductions to inmates as a reward for giving up an organ does not satisfy any of the reasons for incarceration; it serves a purely utilitarian purpose. If we go that route, we go down a slippery slope. Why not turn prisoners into organ-bearing machines to be harvested for medical and financial use? It would be hard to deny there is not an element of that with the mainland's high rate of prisoner execution and state-sanctioned organ harvest.
In South Carolina, state corrections department director Jon Ozmint reportedly said he believed some inmates would donate even without sentence reduction as an incentive. He was referring to prisoners serving life or long sentences for whom a six-month reduction would not make any material difference. But if that's the case, there would be no need to draft a law and set up an organ donation programme. A publicity campaign appealing to the good nature of prisoners and urging them to sign up for an organ donation programme would do.
South Carolina state senators have pointed out that the proposed programme would be strictly voluntary. But this only begs the question: can inmates ever give true consent under any circumstances?
By definition, prisoners are a vulnerable group, under the direct physical control of the state and prison officials who guard them. Their susceptibility to pressure and coercion makes it difficult, if not impossible, to determine whether true consent is given in each and every case.