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Death Row Request Puts Ethics to Test

Indianapolis Star, May 20, 2005
David Orentlicher and Eric M. Meslin

As Gregory Johnson faces execution at the Indiana State Prison on Wednesday, he has asked to donate his liver to his sister, who is dying of liver failure. Should he be able to do so?

There is much to be said in favor of supporting his decision. Most important, Johnson could save the life of his sister. The donation also would permit him to make some atonement for the murder he committed. Allowing him to donate might draw needed attention to the tragic shortage of organs for transplantation.  It could even be argued that because he is scheduled to die anyway, he should not be deprived of the right to make a donation.

Important as these considerations are, on closer examination, we believe that serious ethical concerns should preclude this donation, whether before or after the execution.

Taking his liver before the execution would kill him, and we cannot take one person's life to save the life of another. Johnson has suggested a "split-liver" procedure, in which he would donate part of his liver before the execution, leaving his sister and him with sufficient liver tissue to survive. However, the split-liver procedure is very risky for both donor and recipient and not an option for most liver transplants, including Johnson's situation.

Doctors also cannot take his liver after his execution. At a minimum there remain some questions about the effect on his liver from the lethal drugs that would execute him. In addition, the liver would have to be removed very quickly after death, while it is still vital. In Johnson's case, that would require his execution to take place in an operating room. But medicine is a healing profession, and it would compromise that essential ethic to have executions take place in a hospital.

What if another Death Row inmate wanted to donate a kidney or undergo a split-liver procedure?

There are serious issues of voluntary consent, the morality of medicine, and the integrity of the criminal process that require attention.

Concerns about consent arise especially with the split-liver procedure, which has a risk that many people would not choose to assume. Most prisoners on Death Row, however, will do whatever they can to forestall their execution.  Intended recipients might also agree to a split-liver procedure and unduly risk their lives in the hope that it would help the donor gain clemency. These factors suggest that the standards for a voluntary, informed consent (for both donor and recipient) may not be met.

There is an important consensus in medicine that physicians should not be complicit in executions. Yet doctors would have to coordinate their organ retrieval with prison officials, and that makes it very difficult to maintain a separation between the execution and the surgery.

Finally, Death Row donations may threaten the integrity of the criminal process.  How would the possibility of organ donation affect decisions by the governor and the courts as they weigh requests for clemency? What if another inmate, as Johnson has done, requests a delay in the date of execution to accommodate necessary medical tests? More fundamentally, by permitting an execution to go forward, the governor and the courts could ensure that the inmate's organ would become available to save a family member's life. The subconscious influence of that possibility might distort their judgment.

Or juries in future death penalty cases might be more willing to impose a death sentence if they thought a murderer's organs could be donated after death.

While it is difficult to draw lessons from exceptional cases like this, it is not difficult to recognize that this case presents society with an unusual confluence of two of our most profound ethical and legal challenges: the ethics of organ donation and the ethics of capital punishment.

Orentlicher is co-director of the Center for Law and Health at Indiana University School of Law, on the faculty at the IU Center for Bioethics and is a state representative. Meslin is director of the IU Center for Bioethics and assistant dean for bioethics at the IU School of Medicine.


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