01/03/2011 07:44 pm ET | Updated May 25, 2011

Haley Barbour Breaks the U.S. Organ Transplant Act

Gladys and Jaime Scott went to a Mississippi prison for life in 1994 after committing an armed burglary which netted the then teens $11.00. On December 30, 2010 Mississippi Gov. Haley Barbour suspended the life sentences, but one sister's release is contingent on her giving a kidney to the other.

There's no doubt that a life sentence for an $11 robbery even one where they hit the victims over the head with a shot gun before making off with 11 bucks was extreme and parole after 16 years in jail is long overdue.

What is not sensible, as well as illegal and unethical, is demanding that one sister donate her kidney to the other, even if the sister says she would have done so anyway. Barbour and the parole board it seems were swayed as much by the cost to the prison system of the daily dialysis Jamie needed as by any sense that the verdict and sentence were unjust.

The sisters' cause was championed by the NAACP which lauded the decision to release them. Their civil rights lawyer is actually the one that offered the kidney deal as a way to convince the reluctant governor and prison authorities to release both women. A classic case of passionate conviction for a good outcome ignoring the dangerous implications for some other issue.

According to the AP, Barbour spokesman Dan Turner said that Jamie Scott was released because she needs the transplant. He said Gladys Scott will be released if she agrees to donate her kidney. The parole board to an indefinite suspension of their sentences, which is different from a pardon in that it comes with conditions and can be revoked.

If Gladys is released and does not go ahead with the transplant, she can go back to jail.
Prison authorities say they have not yet received the release order and the sisters would need state approval of their plan to move to Florida to live with relatives and presumably have the transplant.

Now, perhaps there is a humanitarian bone on Barbour's body, but it sounds far more like a state official who just wants to get an expensive prisoner off his hands. Jaime's dialysis costs the state $200,000 a year. Budget cuts abound and health care including transplants are not immune from the knife. This past October Arizona Governor Jan Brewer cut state funding for certain kinds of pancreas, liver, heart, lung, and bone-marrow transplants.

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. Governor 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 US 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 UN, WHO, various professional associations 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.

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.

But such sympathies do not justify turning a blind eye to brokers or even government officials who just don't get what it means to voluntarily consent to give up your kidney. If we are serious about stopping organ trafficking there are two solutions and both must be implemented. The first is to get serious about organ traffickers, starting with Haley Barbour and the state of Mississippi and put all states on notice that prisoners do not lose their human rights and cannot be exploited for their organs. At the same time, those professional associations and opponents of trafficking such as the National Kidney Foundation should demonstrate their seriousness by lobbying for legislation that would make it a crime to arrange or go overseas for a commercialized transplant with strict enforcement mechanisms. So far, these groups have shown no political will to actual go after the worst violators of human rights, the traffickers in our midst.

The second and more effective solution to trafficking and the organ shortage is to stop pretending that we can solve it with better education about registering as an organ donor on death. Few of us are going to die with healthy organs just ready to be transplanted. And recent experience shows that all too few people are going to give their spare kidney on the basis of pure altruism, especially an altruism that leaves them exposed to medical risks. It is time to study whether or not an ethical, non exploitative and safe regime of incentives for living and deceased donation would bring us closer to saving the lives of those with end stage renal disease and putting the traffickers out of business forever.