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How Haley Barbour's Freedom-for-Kidney-Deal for Scott Sisters Makes U.S. Like China

In making Gladys Scott's prison release conditional on the donation of her kidney to her sister, the Mississippi governor sets a dangerous precedent, and flouts the law.

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While donating a kidney is extremely safe when donors are healthy and a rigorous evaluation has taken place, it does have a small risk of death. Requiring a prisoner to agree to take this risk in return for parole violates international transplant standards and human rights. The idea that prisoners are able to consent to risky medical treatment in return for benefits is one that ethicists have long questioned.  It’s one step removed from the Chinese government practice of selling the organs of executed prisoners and kidneys from live Falun Gong and others in jail.

The Chinese have made the practice illegal in response to international pressure, although few experts think it has stopped. Gov. Barbour and the prison board seem unaware that under the 1984 National Organ Transplant Act (NOTA)  (42 U.S.C. 274e) it is "unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation." What could be more “valuable consideration” than a get-out-of-jail card? And given the state’s concern about the cost of Jaime’s dialysis, they too receive valuable consideration in dumping Jaime and Gladys on Florida for a possible transplant.

Now, according to NOTA, any person who violates the valuable consideration provision “shall be fined not more than $50,000 or imprisoned not more than five years, or both.”  The state attorney general in Mississippi should move immediately to bar the parole if the condition of transplantation is not rescinded. And the U.S. Attorney General Eric Holder should uphold the National Organ Transplant Act and ensure that if the parole proceeds as planned -- with organ donation a requirement -- it be made clear that any hospital, physician or other individual including Mississippi state officials who participated in the procurement and transplant of the organ will be charged under NOTA.

NOTA, which was primarily designed to prevent organ trafficking, has been rarely enforced against traffickers. Instead it has served as a mechanism for that segment of the transplant community that is attached to the idea that the only ethical form of donation is one in which a donor makes a substantial sacrifice and takes the full risk of donation on themselves privately. The valuable consideration prohibition has been used to prevent government sponsored funeral benefits for deceased donors and health and life insurance for living donors. Even the now lauded kidney exchanges which involve several recipients exchanging matching kidneys from their donors were not implemented in many hospitals until NOTA was changed to specifically permit them. It seemed getting a donated kidney from someone else’s donor was no longer a gift, but a commodity. Some in the transplant community are obsessed with the purity of the gift, but not so concerned when it comes right down to dealing with real exploitation in the form of trafficking. Report after report has been written by the United Nations, the World Health Organization, and various professional associations, all wringing their hands about the importance of altruism while patients on the list die and organ traffickers continue to exploit the shortage. Last year only 17,000 kidney transplants were done for the over 87,000 people on the official UNOS kidney waiting list. While waiting for a kidney this year, 80,000 people died; they were replaced on the list by more than 80,000 new people with end-stage renal disease.

Organ traffickers in the U.S. operate with impunity, as do the off-shore brokers who arrange kidney transplants in developing countries. Those with kidney disease who return to the U.S. having taken advantage of transplant tourism (trafficking) obviously get care in the U.S., but no one is reporting their overseas jaunts to the cops. In fact, they have done nothing illegal. In particular cases, there is sympathy for the person whose life is at risk who goes on the black market and exploits someone poorer than they in order to live. These are tough, life-and-death decisions that are immoral, but perhaps not the kind of thing we want to put people in jail for.

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