It seems Akshay, Pawan, Vinay and Mukesh, the four convicts in the Nirbhaya rape murder case, will soon go to the gallows. In the buildup to the hanging, several longstanding debates have surfaced in the public sphere. The central amongst them is the critical discourse around the purpose of the death penalty and whether justice is really served and crime is really prevented by such state-organised execution. But this time we heard something new as well, even though in passing.
A Delhi-based NGO called RACO filed a petition in a Delhi court suggesting that the convicts’ organs be harvested for donation. As per the petition, a panel was to be formed to meet the convicts. Comprising an advocate, a social worker, a doctor and one psychiatrist, the panel would motivate the convicts to donate their organs. RACO reiterated that organ donation was in the ‘interest of society and family’ of the culprits. The Delhi High Court rejected the idea on procedural grounds, thus temporarily closing the chapter. While dismissing the plea, the judge said: “I am of the view that the applicant has no locus to meet the convicts, whatever reason there may be’.
The idea that a death row convict can potentially save six lives in his or her death (in this case four convicts, so 24 lives), thus giving back to society and maybe even ‘atone’ for their crime, is indeed a very powerful one. The fact that in countries like India thousands of patients die waiting for an organ makes it even more appealing. When I mentioned the news in conversations with colleagues and family, a large majority supported the idea of using the organs of death row convicts. ‘If they couldn’t do anything good in life, let them do it in death’, one of them asserted. I suspect that if a poll of sorts is held, a majority could support the move.
The idea that the organs of death row convicts be used for transplantation before or after they are put to death is not new. In a well-publicised case, Christian Longo who was on death row in Oregon for the 2001killings of his wife and three children, pleaded that his organs be donated. “I am 37 years old and healthy; throwing my organs away after I am executed is nothing but a waste,” he wrote in an op-ed in the New York Times. He added, “I am seeking nothing but the right to determine what happens to my body once the state carries out its sentence.” Several such individual prisoners in the US both on death row and serving lesser sentences have requested to be organ donors. Though the ethics around this practice have been intensely debated, legally this has not yet been sanctioned.
The biggest moral and political challenge to the idea of using organs of death of prisoners has come from China. Over many decades, the Chinese have been reported to have used organs from death row prisoners in very large numbers. This has included political dissidents, including members of the Falun Gong sect. High level officials of the Chinese government admitted to this practice and committed to stop the practice after a global outcry, which included calls for a boycott from the transplantation community. Iran, which has experimented with a paid market in organs, has recently also announced a policy looking at donations from death row prisoners.
In India, it’s not clear whether it is legally permissible to remove organs from prisoners put to death. A person who is hanged dies instantaneously, thus not being in a state of ‘brain stem death’, which is necessary for organs to be removed as per India’s current transplant law. The only way it can be done is if the death sentence is executed in a medically controlled manner and organs removed instantaneously, like what is now practiced globally as ‘donation after cardiac death’. But such legal and procedural hurdles are not really the fundamental challenge to this idea. The idea of organ donation from death row convicts tests our commitment to justice and ethics even for those whom society has deemed fit to die often for a ghastly crime. It raises many disturbing questions and has the potential of a slippery slope. Should the convicts’ consent be obtained? Or should the family be asked? Is this really free and informed consent? Why even ask a person convicted of heinous crime? Can organ donation be a form of capital punishment? Should we consider a pardon if he or she agrees to be an organ donor? Will the numbers of death penalty go up if this is seen as a source of organs? The list is endless.
Given the shortage of organs and the number of persons dying for want of a transplant, it is tempting for any society to come up with ideas to increase availability of organs, which involve severe moral hazards. In the case of the judicial hangings in India, we are just about beginning to engage with the burden and guilt of permitting the state on our behalf to put people to death. A suggestion for organ donation by death row convicts seems like an attempt at a last-minute atonement or redemption. It may come up again as the idea is powerful. But given the myriad troubling questions it throws up, we need to think it through before we add another layer to the already contentious arena of capital punishment.
Sanjay Nagral is a surgeon who, when not wielding the scalpel, wields the pen