Tough Choices on
David L. Perry, Ph.D.
(A slightly abridged version of this essay was published as "Should Convicted
Criminals Receive Heart Transplants," Santa Clara Magazine, Fall 2002.)
According to the United Network
for Organ Sharing (http://www.unos.org), over 4,100
Americans are currently candidates for heart transplants, meaning that they desperately
need them, they satisfy the criteria for "medical utility" (i.e., a transplant
will probably keep them alive), and they have adequate insurance or other funding to cover
their cost. Unfortunately the supply of hearts in this country doesn't even come close to
meeting the demand: only 2,202 heart transplants were performed last year. Thus, every day
some Americans die waiting for new hearts.
One way to alleviate this problem would be to increase the supply of hearts to
meet demand. All of us should fill out organ-donor cards and inform our families of our
wishes. We can also hope to substantially improve mechanical hearts, and someday to grow
living hearts from stem cells.
But in the meantime, transplant committees face the awful task of deciding who will
receive a heart and who won't--in other words, who will (probably) live and who will
(probably) die. Some people consider this inherently wrong, "playing God," but
God wouldn't have to face this sort of dilemma. It's a uniquely human choice, emerging
from the combination of a) astounding technological advances, b) desperate need, c) dire
scarcity, and d) the egalitarian presumption that nobody should have a privileged claim on
any organ due to their power, fame or wealth.
Now consider a very troubling recent case. Last January in California, a man twice
convicted of robbery was given a heart transplant, even though other people equally needy
were made to wait. That seems grossly unjust to me. When people commit violent crimes,
they exhibit an appalling lack of regard for the basic rights and well-being of their
victims. In my view, they thereby forfeit any future claim to a heart transplant.
Imagine that someone has been convicted of multiple rapes and put in prison. If their
heart subsequently began to deteriorate, could they credibly claim that they have
just as much a right to a transplant as anybody else? No. This conclusion is clearer if we
imagine the rapist as competing with one or more of his victims for the same
heart, but the argument holds even apart from that unlikely scenario.
I wouldn't claim that violent criminals should be denied all medical treatments.
The U.S. Supreme Court was right in ruling that such a policy would represent "cruel
and unusual punishment" (Estelle v. Gamble, 1976). But in the case of
extremely scarce hearts, when every choice to give someone a transplant inevitably means
that someone else will die, it's not unjust to deny them to those convicted of
Would we be at risk here of allocating organ transplants based on "social
worth"? No, because the decision would in effect be made by the judges and juries who
convict people of violent crimes. Transplants would be denied on the basis of intentional
criminal acts, not on subjective judgments of character.
But then, we must also eliminate the unfair burdens of our criminal justice system on the
poor, who are too often wrongly convicted of crimes due to inadequate legal counsel. It
would be just as wrong to deny transplants to innocent people as it would be to execute
Finally, we must expand our nation's health insurance system to guarantee that the poor
don't have to go to prison in order to obtain needed health care.
David Perry was Lecturer in Religious Studies and Philosophy at
Santa Clara University when this article was published.