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Organ Donation from Death Row: An Insight into the Laws, Ethics, and Need

Allie A. M. Canino

First Colonial High School

Legal Studies Academy

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Abstract

This paper highlights the use of organ donation from death row inmates facing execution. The

author begins with the history of both the death penalty and organ donation, to give insight on

the two subjects before they merged. Ethics of organ transplantation and the debate in the

medical community is analyzed as the author discusses the implications of the changing medical

field and the possible effect on death row organ donation. Glossip v Gross (2015) is referenced

and discussed to discuss the effects of execution on inmates, and the author briefly discusses

both Bill 2263 and Missouri. The author then analyzes organ harvesting from inmates in China

and uses it to highlight a method to avoid. Finally, the paper concludes with an overview of

information and highlights the future implications of organ transplants from death row.
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Organ Donation from Death Row: An Insight into the Laws, Ethics, and Need

Access to harvested organs may soon come from an unlikely place- death row. Upon

execution, an inmate is declared legally dead after fifteen minutes, a death caused by the

shutdown of organs, which can lead to hypoxia and more (Campbell, 2004). However, with the

ever changing methods of execution, and the cocktail of drugs varying, the ability of death row

inmates to choose to donate their organs has grown. However, the topic delves into the argument

of their ability to consent, whether organs should come from death row, and what the most

ethical method of available execution methods are. As the medical community continues to make

advances in organ transplantation, as well as creating new proposals to increase organs able to be

harvested, the legal system in place infringes on an death row inmate’s right to be an organ

donor. The right to organ donation should be universal, but the current ethics and methods of

execution do not give death row inmates a fair chance to make their own decisions.

History of Death Row and Organ Donation

Throughout the years, the topic of death row has created controversy and disrupted the

criminal proceedings of trials. With the history of death row being entrenched in racism, and the

stretch into a new generation, the ethics continue to be debated. As the topic of organ donation

begins to mesh with that of death row inmates, the history of both in the United States must be

revisited.

Revisiting History: Death Row

Long before the death penalty was used in America, centuries before, the death penalty

was used often and for many crimes. Most prominently, the death penalty was used in the

Sixteenth Century, when an estimated 72,000 people were executed under the reign of Henry
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VIII. The colonization of the British in the Americas bought over many British traditions,

including the death penalty and execution. It would eventually reach heights where if one stole

grapes or interacted with Native Americans, they could be put to death (Randa as cited in DPIC,

n.d.). In “Trial and Error: Capital Punishment in U.S. History,” historian William S. McFeely

discusses the reform of the death penalty, from its origin in local levels of government, to the

abolishing of capital punishment at local levels, a change led by Vermont in 1864. Eventually,

the creation of electricity led to the adoption of the electric chair in an effort to make executions

more humane. Cases of executions of African-Americans living in the South rose following

World War 1 and the Civil War, with public lynching being the preferred method, spurned on by

mob mentality. In 1976, a Supreme Court case ruled that the death penalty was constitutional as

long as there was an equal application of it under the law, meaning there must not be any racial

bias. Ever since, up until the year 2001, a debate has persisted as people who were on death row

were found innocent. Between 1973-2001, 90 people with death sentences were found innocent,

with proof given from lawyers and reviews of their cases (McFeely, 2001). In the years

following McFeely’s article, the lethal injection was adopted by many states for the same reason

the electric chair was- to provide a more humane execution for the witnesses and inmates.

However, in recent years, cases of lethal injection have caused an uproar, as the cocktail of drugs

causes more suffering for the executed.

Virginia and Death Row: A Brief History

TIME’s recent article by Madeleine Carlisle, Why It’s So Significant Virginia Just

Abolished the Death Penalty, highlights that Virginia was the first state in the United States to

use the death penalty, its origin dating back 400 years. Amid Jim Crow Laws, lynching, and
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slavery, the following use of the death penalty had less to do with what the crime one committed

was, but rather their race, job, and area where they lived. In the 20th century alone, 296/377

people in Virginia to be executed for murder were black. Despite not having issued the death

penalty to anyone since 2011, and no executions taking place in Virgina since 2017, it took

another four years for the abolishment to take place; the two men remaining on death row were

both black. Despite Virginia being runner up for most executions since 1976, with 113

executions, the massive change was put in place with 56% of Virginians supporting the

abolishment. While Virginia may have been the first state with the death penalty, history was

made as it was the first Southern state to ban capital punishment (Carlisle, 2021).

The Beginnings of Organ Donation

According to Barker and Markmann’s article, Historical Overview of

Transplantation in Cold Springs Harbor Perspective in Medicine, it was not until the mid-20th

century that organ donations began being successfully completed. For decades, the idea of

transplantation were simply myths, as paintings of saints completing complex transplantations

were depicted by artists. However, it was animal experimentation conducted by Emerich

Ullmann, Jaboulay, and Ernst Unger that proved to be successful. Unger became known after

using monkey donors to conduct human kidney transplants, but they all died after surgery.

However, the largest contributions to organ transplantation were done by Alexis Carrel, who is

credited with the discovery and fine tuning of vascular stitching. In the early 1900s, Carrel

teamed up with Charles Guthrie, and the two successfully transplanted a kidney, thyroid, ovary,

heart, and more, all on animals. Carrel’s unsuccessful organ homografts caused the experimental

phase of organ transplantation to halt for two decades. However, it was not until Peter Medawar,
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in 1951, while doing research on conducting homografts on twin animals, read a paper written by

Ray Owen, and he concluded that a combination of red blood cells and leukocytes make up the

need for acceptance of skin grafts. In December 1954, Joseph Murray conducted surgery on two

identical twins, using one as a donor of a kidney for the other- the resulting success was the

barrier that needed to be broken to open up to the world of organ transplantation (Barker &

Markmann, 2013). For many years afterwards, advance after advance occurred in the organ

transplant community, with successful living transplants occurring, and simultaneous transplants

being conducted. In 1983, an immunosuppressive drug was created to effectively treat organ

rejection, Cyclosporine being the name. The creation of UNOS, aka United Network for Organ

Sharing, in 1984 put forth a network of organ sharing that allocated deceased organs, allocating

them to people on a waitlist, which is affected by the need for an organ and the amount of time

that the person in need has been on the waitlist (UNOS, n.d.).

Ethics and Implications of Using Death Row Inmates’ Organs

The article “Harvesting the Living?: Separating ‘Brain Death’ and Organ

Transplantation” by Courtney S. Campbell from the Kennedy Institute of Ethics Journal

highlights the lack of viable organs present in the United States, which stems from the ethical

argument of what death is. The case of Horacio Alberto Reyes-Camarena, a death row inmate in

Oregon, became publicized nationwide when he was up for a kidney transplant while on dialysis.

Many arguments stemmed from the possibility of Reyes-Camarena receiving a kidney, with over

200 Oregon residents being on the transplant list in need of a kidney. He was eventually passed

over, not meeting the medical criteria. However, the article argues that this shows how the

healthcare system in the United States cannot provide equal access to healthcare when it is
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needed due to lack of organs. With over 6,000 people dying every year due to organ needs,

Campbell proposes a solution that has been brought up in many science communities, which is to

expand the definition of death. Many proposals advocate for the modification of the “dead donor

rule,” creating an expanded definition of what death is considered in the medical community in

order to create more viable organs. The reason this is a proposal being made is due to the lack of

viable organs being produced by people who are organ donors. By modifying the “dead donor

rule,” organ death could be delayed or not occur, meaning all organs could be considered for

donation, instead of organs failing while a person is declared legally dead. Furthermore, the

argument that someone who is brain dead must be fully brain dead has been brought up in

medical communities. Waiting for a patient to become fully brain dead in order to declare them

fully dead can cause the loss of, what were at first, viable organs (Campbell, 2004). This article

fits the topic of retrieving organs from death row inmates because the issue that arises with death

row execution is the eventual organ shut down, causing hypoxia in the organs, making them

unviable. However, the argument for pre-mortem organ retrieval from people who are guaranteed

to die, but permit the organs to be removed at a time where they are still viable, is a prevalent

battle. With death row executions, the lethal injection causes organ failure after 15 minutes, but

with permission from the prisoner and willingness from the prison, they could permit their

organs, if they have been declared viable, to be retrieved and donated to those who need it. Not

only does this tie into the prison system, which is where the topic is prevalent, but to the organ

donation system in the United States. Despite there being organ donors nationwide, the amount

of organs that are viable are slim compared to that number. With the permission of patients, or

more likely their family, the amount of organs able to be donated could rise significantly.
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Relevant Laws

In recent years, the argument of organ donation from death row inmates has arisen, as

well as the long withstanding debate of the method of execution. The court case Glossip v Gross

(2015) illustrates the argument of capital punishment in comparison with the 8th Amendment,

and a recent law passed in Virginia abolishes the death penalty, meaning capital punishment can

no longer be administered in Virginia courts. Elsewhere in Missouri, there is a bill being

proposed that would allow death row inmates to choose to be organ donors. As the topic of organ

donation stemming from execution becomes more prevalent, as do the laws and court cases that

have come before the discussion.

Glossip v Gross (2015)

Glossip v Gross (2015) was argued in front of the Supreme Court with the following

issue: Was the use of Midazolam in following executions a violation of the 8th Amendment after

Clayton Lockett’s execution in Oklahoma? Lockett was executed in April 2019, with a new

mixture of execution drugs, a three-drug system that included Midazolam. The use of Midazolam

was supposed to cause the inmate to be rendered unconscious. However, soon after the drugs

were administered, Lockett woke up, gasping and pulling away from the binds, gasping and in

pain until his death 40 minutes later. An injunction was filed by multiple inmates and other

community members in an effort to halt the executions occurring after Lockett’s, claiming the

use of Midazolam caused the reaction to the drugs (Oyez, 2014). The case follows the prior

execution of Dennis McGuire in Ohio, who choked and gasped for air following the

administering of his drug cocktail with Midazolam, and took 25 minutes to die as he was unable

to breathe (Millman, 2015). Following arguments and deliberation, the Supreme Court of the
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United States ruled that the use of Midazolam does not violate the 8th Amendment because the

Amendment does not state that the execution must be painless, but rather advocates for less

painful procedures used. This pertains to the topic of organ donation from death row inmates

because the use of a certain cocktail of drugs, which had the common drug of Midazolam led to

an extreme struggle for the inmates. Rather than the death under unconsciousness, the gasping

for air would lead to the shut down of lungs and heart, causing their death, rather than organ

death. With organ death, certain organs may still be transplanted, despite it being only one or

two.

Virginia: House Bill 2263

House Bill 2263, a proposal to abolish the death penalty in Virginia, was recently passed.

Following its enactment, defendants in criminal trials are no longer be able to receive the death

penalty, and current inmates on death row are now receiving life imprisonment (Pilkington,

2021). This relates to the topic because it connects to the organ donation of death row inmates.

As a result of the abolishing of the death penalty, there will be no way to receive organs from

those given capital punishment. It also shows how as states move towards the abolishing of the

death penalty, the topic will lose its backing, as there will be no death row inmates to be given

the choice between organ donation or not. While the abolishment of the death penalty “amends”

it’s highly racist past, the debate will continue for a long time.

Current History: Missouri

In 2019, Missouri proposed a bill that would allow death row inmates to donate their

organs if they chose to (Regnier, 2019). The bill was backed by someone who has been on

dialysis for four years, Julia Sommer, who states that despite the organs coming from an inmate,
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then at least it is helping more people rather than causing more harm. Other people argue that

since the amount of executions of death row inmates is rising, their deaths should be good and

help other people if they have the ability to. However, people against the bill argue the ethical

issues- are death row inmates really in the mental place to decide to give up their organs? Will

using death row inmates for their organs make it seem like people only care about the person’s

organs and not the person themselves? Since the bill passed in committee in January of 2019, it

has yet to be heard or proposed on the floor of the House and Senate of Missouri (Regnier,

2019).

Worldwide Use of Death Row Inmates Organ Donation

The article “Determination of Death in Execution by Lethal Injection in China” by

Norbert W Paul from the Cambridge Quarterly of Healthcare Ethics highlights the flaws in the

organ donation system in place for death row inmates. Executions in China are plentiful, and are

often injections where the one being injected is declared dead following 10 seconds after the

injection. By doing this, they can declare death, then proceed to harvest the prisoner’s organs.

However, due to unethical coercion and declaration of death, the United States can learn from

China’s policies. In 2007, the medical board declared there would no longer be harvesting of

organs from those who had been executed, and a multitude of hospitals committed to stopping

the procurement of organs. However, the practice continued until 2014, when there was a public

declaration that claimed there would be no more use of organs from prisoners; however, there

was no law or legal statute put in place to prevent it (Paul, Caplan, Shapiro, Ells, Allison, & Li,

2018). The United States can take the actions China has taken, and learn from it to create a more

ethical environment for the use of organs from prisoners. While the concept of death caused by
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lethal injection is debated, the declaration of death after ten seconds leads to death from organ

procurement, creating a flurry of ethical issues. However, with appropriate time and consent

from prisoners, the donations from prisoners are not impossible.

Closing Thoughts

The future of capital punishment continues to plague politics and court rooms, and there

are many new questions arising as more states continue to amend their laws or abolish the death

penalty. While the future is unknown, the current rights to organ donation for death row inmates

offers a perspective many people have never considered. Per the norm, someone who is dying

and has harvestable organs can consent to having their organs harvested and donated, potentially

saving someone’s life. Modifications of the “dead donor rule” could have the potential to save

many lives, as well as the creation of a cocktail that does not lead to someone suffering for over

20 minutes, waiting to die. With the changes in history, such as the long history and fine tuning

of organ transplantation, possible solutions can be put forth with advances in science and ethics.

The only question remaining is: Who gets to decide whether or not someone can consent to their

organs being donated- and why is it not the person?

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References

Barker, C. F., & Markmann, J. F. (2013). Historical overview of transplantation. Cold Spring

Harbor perspectives in medicine, 3(4), a014977.

https://doi.org/10.1101/cshperspect.a014977

Campbell, C. S. (2004). Harvesting the living?: Separating "brain death" and organ

transplantation. Kennedy Institute of Ethics Journal, 14(3), 301-18. Retrieved from

https://search.proquest.com/scholarly-journals/harvesting-living-separating-brain-death-o

rgan/docview/217117514/se-2?accountid=3785

Carlisle, M. (2021, February 9). Why It's So Significant Virginia Just Abolished the Death

Penalty. Time. https://time.com/5937804/virginia-death-penalty-abolished/

Death Penalty Information Center. (n.d.). Early History of the Death Penalty. Retrieved April 1,

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Glossip v. Gross. (n.d.). Oyez. Retrieved February 16, 2021, from

https://www.oyez.org/cases/2014/14-7955

Lin, S. S., Rich, L., Pal, J. D., & Sade, R. M. (2012, July 3). Prisoners on Death Row Should be

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https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3388804/

McFeely, W. S. (2001, January). Trial and Error: Capital Punishment in U.S. History. Retrieved

April 1, 2021, from http://historymatters.gmu.edu/d/5420

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Millman, J. (2015, January 23). The botched executions that make people think lethal injection is

cruel and unusual. The Washington Post.

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-make-people-think-lethal-injection-is-cruel-and-unusual/

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Pilkington, E. (2021, February 2). Virginia may be first in south to abolish death penalty and

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https://www.theguardian.com/us-news/2021/feb/02/virginia-abolish-death-penalty-legaliz

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