Well, it’s been all over the news: Governor Haley Barbour has examined the cases of Jamie and Gladys Scott, two sisters in the Mississippi Correctional System. They were convicted of participating in a robbery, and each received life sentences. To this point, they have served sixteen years.
Now, these women have been subjects of discussion for some time as possible recipients of clemency. First, the robbery netted $11.00. The young men who were also participants, who actually struck the victims and took their wallets, all received much shorter sentences. In general, a life sentence for participation in the crime in question is quite exceptionally long.
Governor Barbour has decided they can leave prison. Unusually, he has not decided to commute their sentences. Instead, he has decided to suspend their sentences. An important difference between commutting the sentences and suspending the sentences is that once committed, the sentence is ended, while a suspension can be made conditional.
And in this case, there is reportedly a condition, at least for one of the sisters. Jamie is in kidney failure and quite ill. Her care requires dialysis. Her suspension is on compassionate grounds, although the governor was explicit that the cost to the state of Jamie’s dialysis was also an issue. For Gladys, on the other hand, there is a condition for the suspension of her sentence: that she donate a kidney to be transplanted into her sister. Now, this is something that Gladys is willing to do; indeed, it was her idea. However, that raises a question of why it should be made a condition. Fact is, it’s not known whether she’s actually a compatible donor. The sisters share a blood type, and that’s some indication, but it’s not the only measure.
In news reports and in blog comments, it’s been widely noted that this raises all sorts of ethical questions. However, I haven’t yet found an analysis of why. So, I thought I’d consider the question in light of the Georgetown Mantra.
The first category to consider in the Mantra is that of Autonomy. There are a number of questions related to autonomy, and these are initially the thorniest when considering donation. First, there are actually two patients here, Jamie and Gladys. The issues of autonomy for Jamie, at least initially, seem straightforward. Does she wish to receive a transplant? Conceivably, she could prefer to continue dialysis, although that certainly has its own risks for her. However, at this point it appears she is prepared to receive a transplanted kidney from her sister.
That said, I would raise a question of whether she understands the consequences of the transplant. If things go well, she will have a functioning kidney. However, to protect the new kidney from rejection and infection, she will also be committed to a regimen of drugs for the rest of her life. This is the case for all transplant recipients, and they accept it gratefully. However, if Jamie has not thought about this, we can question whether her consent is properly informed.
For Gladys, on the other hand, the issues of autonomy are more complicated. She has expressed her willingness to donate a kidney to her sister. However, in the situation as presented, we have to raise the question of whether this is a free choice. When we think about consent to a procedure, we usually worry about whether the patient’s consent is informed. However, there is also a concern about whether the patient’s consent is free – free from inappropriate inducement or coercion. In research, prisoners are considered a protected class, a group whose consent is questionable because the freedom to consent isn’t necessarily free. In Gladys’ case, the primary question raised has been whether suspension of a life sentence is excessive inducement. More to the point, is rejection of the suspension of her sentence so significant a threat as to be coercive? This would be an important question in any procedure, whether for research or for therapy. However, this is in relation to a transplant procedure, one that, while not requiring that Gladys die, does entail significant risks. First and foremost, it leaves Gladys with one functioning kidney herself. Suppose that now she should develop kidney failure. Her sister did, and it’s conceivable that she might. By and large, a person can function with one kidney, and we are blessed with the redundant system of having two. Thus, if one fails, the other can function; or if both are disabled, between the two they might continue to maintain function equivalent to two. For Jamie, this is not the issue. Her kidneys together do not function well enough to sustain her. With the new kidney she would have one functioning, which is more than she has now. However, for Gladys she is reducing from two to one, with the consequent risks. Those risks are known, calculable, and relatively small. However, the question remains whether making the donation a condition for the suspension of a life sentence in prison is coercive.
The second category to consider for these two sisters is Non-maleficence, summarized in the well-known premise, “First, do no harm.” Once again, for Jamie this seems straightforward. There are risks for her in the procedure, but in general we’re not concerned for her in avoiding harm.
For Gladys, on the other hand, there is potential for harm. She is, after all, taking a significant risk, and increasing her risks for the future. In addition to the risks we’ve already referenced regarding the loss of a kidney, there are also the risks related directly to the surgical procedure. Once again, these are known, calculable, and manageable, but they are significant.
The third category is Beneficence, determination of the patient’s best interest. Again, for Jamie this seems simple. It is not in her best interest for her kidney failure to go untreated; and with the risks and significant limitations related to dialysis, a kidney transplant seems in her interest.
There remains, though, the question of Gladys’ best interest. She is making a sacrifice at measurable physical risk. However, there is also the interest of having her sister survive. While we tend to focus on the physical risks, the emotional benefits of her generosity, and of the continuing relationship with her sister, are interests we need to appreciate.
Finally, there is the question of Justice, which I commonly describe as how these issues affect society. In this instance we have issues of justice in the narrower, legal sense. Both women are prisoners serving life sentences, convicted presumably by juries of their peers. There is arguably some effect to society in suspending these sentences. This is countered to some extent by the argument that a life sentence for the crimes in question was in itself unjust.
The governor also acknowledged the concern about the cost of providing care for Jamie in the correctional system. Dialysis is certainly costly, and is an expense ongoing until Jamie’s death. The medications to maintain a transplanted kidney are also costly; but if the sentence is suspended, presumably the costs won’t be born by the state of Mississippi. That may be temporary as well, in that she may need support from Medicaid; but I can only imagine that this has been calculated as well.
While we resist discussing dollars in health care, they are important. Funds are limited, and so money spent on Jamie is not available for the care of other prisoners, or for other activities of the state. It is a reasonable question as to whether continuing to spend the costs of dialysis serves the interests of the people of Mississippi. In fact it is a reasonable question whether continuing the costs of imprisoning these two elderly women serves the interest of the people of Mississippi.
At the same time, there are also issues of justice that are common in all cases of transplantation. It is well known just how small supply of organs donated is in relation to the possible recipients. A real-life exercise in “lifeboat ethics” is the function of a Transplant Committee is to decide which of a number of eligible patients will receive a donated organ. Family donations are a special case, both because of the greater likelihood that the siblings will be a match, and also because rarely are there any other circumstances in which a donation can be directed. Now, while Gladys might well be altruistic enough to be a registered organ donor for a stranger, we can ask whether she would willing to be a living kidney donor for a stranger, or whether any other donation would wait for her death. This affects the supply of a scarce resource, and so to some extent, however small, all the possibly eligible recipients on the list.
The possibility that the condition of the suspension might be coercive also raises a justice issue. If Gladys can be coerced into donating a kidney (even if she’s actually willing), to what possible ends can other prisoners be coerced, or at least inappropriately persuaded? This is an especially difficult issue in organ donation in light of allegations that in China organs for donation are recovered from executed prisoners, with no consideration of consent; or that in South Asia poor donors are persuaded with large amounts of money to donate kidneys that are then available to foreign recipients based, not solely on good clinical criteria, but also on the ability to pay. While there are limits to a “slippery slope” argument, this is certainly one place we might expect one.
There could be more complete reflection on this case. However, this seems to me an appropriate beginning to consider the case in light of a set of well-known principles in medical ethics. I imagine others will go to greater length, largely in academic publications. I thought it worthwhile to get the conversation started here. So, here are my thoughts. The thoughts of others are welcome.