Ethics Forum. July 1, 2002.
Scenario: Should a prisoner get a life-saving heart transplant?
A case in California earlier this year sparked a nationwide debate regarding organ transplants for prison inmates. We asked two medical ethicists to address the ethical concerns. One author specifically was asked to address the arguments in favor of such procedures, while the other was asked to discuss the arguments against providing inmates with organ transplants.
Reply:
In favor. There are more than 80,000 people on the waiting list for an organ transplant in the United States. Nearly 6,000 of them will die this year before a transplant becomes available.
The chronic shortage of donor organs gives rise to challenging and tragic issues related to recipient selection and organ allocation.
The recent case of a California prison inmate receiving a heart transplant has generated considerable discussion and debate regarding the propriety of an inmate receiving a life-saving transplant.
First, it is important to understand two separate but related processes: organ recipient selection and organ allocation.
Recipient selection refers to the decision by a transplant center to register an individual on the waiting list after completing an evaluation. (Individual transplant programs have tremendous latitude to develop their own policies and protocols for patient evaluation and recipient selection.)
Organ allocation refers to the identification of the actual recipients when organs have been recovered from a particular donor. (These decisions are determined according to organ allocation algorithms, based on policies that have been developed by the United Network for Organ Sharing, which operates the national Organ Procurement and Transplantation Network under a contract with the Dept. of Health and Human Services.)
Once a patient is registered on the waiting list, the organ allocation algorithm helps determine who will receive a particular organ on the basis of medically relevant factors and the length of time a potential recipient has spent waiting.
Factors, which vary by organ, include the severity of a patient's disease, the risk of dying without a transplant, and the quality of immunologic match between the donor and potential recipients. The allocation algorithms are blind with respect to a patient's sex, race and financial status.
Similarly, whether an individual is (or has been) incarcerated is not a factor in the allocation algorithm. There is no mechanism to put prisoners lower in priority on the waiting list; conversely, there is no way to move celebrities up to a higher priority.
Psychosocial factors do come into play in the recipient selection process. The goal of the transplant evaluation is to identify those individuals with end-stage organ failure for whom transplantation represents the best option for long-term survival. Further, it is intended to screen patients for various medical, surgical and psychosocial conditions that may limit the success of the transplant.
For example, a malignancy may limit the life expectancy of the individual irrespective of a transplant's function. Similarly, the inability to manage the complex posttransplant regimen, either independently or with assistance from a support structure, threatens the likelihood of a successful outcome.
That one is a prisoner should not, by itself, be a contraindication to being evaluated for a transplant.
The suggestion that prisoners should be excluded from consideration for transplantation is generally rooted in some notion of "social worth." This view is problematic for several reasons.
First, physicians and other transplant professionals have no special expertise in determining social worth. Transplant teams have expertise in caring for patients with end-stage organ failure and those who have received transplants. In that capacity, they must determine who is in the greatest need of a transplant and who might respond most successfully to a transplant.
These decisions are based on objective medical criteria or other factors deemed clinically relevant. They are not questions of "worth."
Second, transplant professionals cannot function as extensions of the judicial system. That is, if we withhold medical care from someone because he or she is a prisoner, we must have confidence in, and in fact oversight of, the system that convicted him/her. Likewise, transplant teams should not be compelled to impose a stiffer sentence (death without a transplant) than the courts deemed appropriate.
Determination of social worth must ultimately be a function of broad social consensus. In the United States, the consensus is that prisoners are entitled to appropriate medical care, including transplantation if necessary.
It is tragic that anyone should die for lack of donor organs. But the tragedy is not that a prisoner received a transplant. Rather, it is that nearly 40 million Americans, those without health insurance, do not enjoy the same entitlement.
--Mark D. Fox, MD, PhD
Director, Program in Transplant Ethics and Policy, University of Rochester Medical Center, Rochester, N.Y.
Reply:
Against. First, I must point out that, in my opinion, much of the outrage over this recent case is misdirected at the criminal who received the heart transplant and the medical center that provided it. It would have been better directed at this country's failure to provide universal health care coverage.
The criminal was guaranteed this level of health care by court decisions that denial of a heart transplant would violate the constitutional protection against "cruel and unusual punishment."
Consider this: Heart disease is the most common cause of illness and death. Certainly among California's share of the 40 million or more uninsured Americans there must have been noncriminals in need of a heart transplant. The potential benefits to them would have included a wide range of life goals, such as the ability to work, raise a family, travel with friends and loved ones -- in other words, all the benefits we seek as members of a free society.
By contrast, the potential benefits to the criminal were limited by his being confined to prison.
Thus, almost certainly, the physicians basing their decision on medical factors alone, namely need and benefit, would have tended to favor a noncriminal -- if any were available in the pool of potential recipients.
This is not to say, however, that societal factors are not important in the ethical allocation of organ transplants. In a book chapter we co-authored, Nancy Jecker, PhD, and I have distinguished between two fields of justice: medical justice and societal justice. In our view, medical justice requires physicians to uphold the ideal of service to anyone in need who can benefit from medical treatments without regard to ethnic, racial, societal or economic factors.
Societal justice seeks to distribute burdens and benefits fairly. How does one decide what is fair?
One way is to visualize an "original position" behind a "veil of ignorance," as a thought experiment, as first described by John Rawls in A Theory of Justice. Before being born, one would ask: What kind of society would I want to enter without knowing what my strengths and weaknesses would be? Obviously, if I were healthy and strong and smart, I would want society to allow me to exercise my abilities to the fullest to become happy and successful. I would not need social services; thus, I would be disinclined to enter a society that placed any tax burden on me.
But what if I were disabled or mentally retarded or poor? Wouldn't I want society to require the more fortunate members to share their wealth through taxation to provide social services for the less well-off? Thus, we would want to enter a society that took into account all these varieties of needs and provided a fair mechanism for sharing burdens and benefits.
With respect to health care, I maintain a just society should assure that every member of that society has a "decent minimum" of health care. Society might decide that this minimum should include heart transplantation.
But society cannot escape the fact that transplantable organs are a limited resource. Not everyone who needs a heart transplant will be able to get one, simply because there are not enough hearts to go around. A just society must decide who is eligible to compete for the limited resource.
Back to the criminal and the original position behind the veil of ignorance. Would you want someone who broke the societal contract by taking more than a fair share of limited benefits to claim even more benefits? Or worse, would you want a murderer to obtain a heart transplant, once again depriving another member of society -- possibly you -- of life?
Almost certainly, a person in this original position would answer, "No, I would not want to enter this kind of society; it would not be fair." Thus , a just society might quite reasonably decide that some criminals are not entitled to obtain certain benefits.
Even if a just society decides that certain criminals are not entitled to the same level of medical care afforded all other members of the society, that does not mean criminals are not entitled to receive any medical care. There is a lower level of care, a "rudimentary decent minimum" that medicine provides to persons on simple humanitarian grounds, even though they are not considered members of that society (for example, emergency treatment of illegal immigrants). Clearly, this level of care does not include access to heart transplants.
On the other hand, how might the courts interpret the criminal's right to a heart transplant in the presence of universal health care? The courts did not ordain that criminals should receive special treatment, only access to the same medical treatment available to others.
Therefore, rather than guaranteeing the heart transplant for the criminal, the courts would have to acknowledge that heart transplants are a limited resource and that the criminal's claim must be weighed against the claims of all the other eligible members of society.
--Lawrence J. Schneiderman, MD
Professor, Dept. of Family and Preventive Medicine and Medicine, University of California, San Diego
Ethics Forum discusses questions on ethics and professionalism in medical practice. Readers are encouraged to submit questions and comments to philip.perry@ama-assn.org or to Ethics Group, AMA, 515 N. State St., Chicago, IL 60654; fax 312-464-4613. Opinions in Ethics Forum reflect the view of the author and do not constitute official policy of the AMA.
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Copyright 2002 American Medical Association. All rights reserved.
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