Could South Carolina offer inmates sentence reductions or donors tax credits in exchange for organ donations?

Plain-English summary

A South Carolina senator asked about giving inmates sentence benefits or donors tax incentives for organ donation. The Attorney General concluded that allowing condemned inmates to exchange organ donations for life sentences, or other inmates to receive time off, could violate the federal prohibition on transferring human organs for valuable consideration when interstate commerce was affected. The office said a court would have to resolve that issue definitively.

The opinion separately concluded that a tax credit for donating an organ covered by the federal statute would be prohibited, following a Kansas Attorney General opinion. It treated a proposed credit for unreimbursed expenses differently: because federal law excluded specified reasonable payments and donor travel, housing, and lost-wage expenses from “valuable consideration,” it said such an expense credit might be upheld.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the opinion approve shorter prison sentences for organ donors? A: No. It warned that sentence reductions could be valuable consideration prohibited by federal law and said only a court could decide the issue finally.

Q: Did it distinguish a tax credit for an organ from one for donation expenses? A: Yes. It concluded a credit for donating a covered organ was prohibited, while a credit tied to unreimbursed donation expenses might be upheld.

Q: Which expenses did the cited federal exception identify?
A: The opinion quoted reasonable payments connected to removing, transporting, implanting, processing, preserving, checking, and storing organs, plus donors' related travel, housing, and lost wages.

Q: Did the office decide whether every expense credit would be valid? A: No. It found no directly on-point attorney general opinion or case on an exemption for unreimbursed expenses and said a legislative credit might be upheld.

Background and statutory framework

The opinion applied 42 U.S.C.A. § 274(e), which banned transfers of covered human organs for valuable consideration for transplantation where interstate commerce was affected. The office discussed its 2007 opinions on inmate donation credits, a Kansas opinion on organ-donation tax credits, and the federal exception for specified reasonable costs. Its conclusions about sentence and tax incentives reflected that 2009 analysis rather than a court ruling.

Citations and references

Federal statute: 42 U.S.C.A. § 274(e), including the definitions and expense exception discussed in the opinion.

Attorney General opinions: South Carolina opinions from 2007 and a Kansas opinion dated March 17, 2000.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/june-4-2009/
• Original PDF: https://www.scag.gov/wp-content/uploads/2017/01/Anderson-R.-6-4-2009-01203710xD2C78.pdf

Original opinion text

The Honorable Ralph Anderson, 2009 WL 1968583(2009)

2009 WL 1968583(S.C.A.G.)

Office of the Attorney General
State of South Carolina

June 4,2009

*1 The Honorable Ralph Anderson
Senator

District No. 7
P. O. Box 142

Columbia, South Carolina 29202
Dear Senator Anderson:

In a letter to this office you questioned the legality of providing credits and monetary incentives for organ donations. You specifically referenced legislation in other states that allow inmates to avoid the death penalty by donating organs, giving inmates time offfor organ donations, and legislation providing exclusions from income taxation with respect to certain organ donations and donation expenses.

In prior opinions dated November 30, 2007 and February 27, 2007, this office dealt with proposed legislation which would have entitled an inmate who donates bone marrow or human organs to receive a deduction from his sentence. The opinions dealt with a construction of 42 U.S.C.A. § 274(e) which states that "[i]t shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce." The term "human organ" is defined by subsection (c)(1) as "...the human (including fetal) kidney, liver, heart, lung, pancreas, bone marrow, cornea, eye, bone, and skin or any subpart thereof and any other human organ (or any subpart thereof, including that derived from a fetus) specified by the Secretary of Health and Human Services by regulation." Pursuant to subsection (c)(2) of that provision, the term "valuable consideration"

...does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a hiunan organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ.

The term "interstate commerce"for purposes ofsuch provision is defined as"...commerce between any State or Territory and any place outside thereof, and...commerce within the District of Columbia or within any other Territory not organized with a legislative body." The referenced February 15, 2007 opinion noted that the term "human organ" specifically includes bone marrow for purposes of the federal prohibition. As to whether the receipt of a deduction from a period of incarceration would constitute "valuable consideration", reference was made to another prior opinion of this office dated January 11, 1996 which stated that

[a] commonly-accepted definition of valuable consideration...[is that such]...consists of some right, interest, profit or benefit accruing to one party, or some forebearance, detriment, loss or responsibility given, suffered, or undertaken by the other.

In resolving the question as to whether the donation of bone marrow would affect interstate commerce, reference was made to a prior opinion of the Kansas Attorney General dated March 17, 2000 which stated:

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The Honorable Ralph Anderson, 2009 WL 1968583 (2009)

*2 Congress' commerce power derives from the United States Constitution and its scope is not

confined to the regulation of commerce between the states but may reach intrastate activities which interfere with or obstruct the exercise of this granted power.

The prior opinion of this office noted, therefore, that intrastate activities are also to be examined with regard to any effect on interstate commerce. See also: Heart of Atlanta Motel. Inc. v. United States. 379 U.S. 241 (1964) (inns and hotels catering to intrastate guests); Wickburn v. Filburn. 317 U.S. 1 1 1 (1942) (homegrown wheat). It stated that "[ajrguably,

the donation of bone marrow by a prisoner would also implicate intrastate activities involving interstate commerce."

In dealing with the donations of organs pursuant to the National Organ Transplant Act, the Kansas Attorney General

in the referenced 2000 opinion determined that
[interstate commerce is affected when, upon receipt of a body part... (which would presumably include bone marrow)
...an approved hospital or storage facility in the state contacts an organ procurement organization through the

National Organ Procurement and Transplantation Network established by Congress to assist in the nationwide equitable distribution of organs. The Network was established pursuant to the National Organ Transplant Act... Interstate commerce is affected when body parts for human transplantation enter the Network established by Congress....It was

referenced that "(a)s a condition for receipt of medicare funds, hospitals are required to contact a regional organ

procurement organization... and establish protocols for the identification of potential organ donors."

Consistent with the above, the February, 2007 opinion of this office, concluded that as a result of the involvement of such a network, the donation of bone marrow or blood-forming cells by a prisoner would affect interstate commerce and would, therefore, be inconsistent with the federal legislation. The November 30, 2007 opinion concluded that "... we must caution that the law in this area is unsettled and that a court could conclude that the donation of organs or bone marrow by a prisoner for "good time credits" could be considered "valuable consideration" in violation of the...

(federal)... statute.

Consistent with the above opinion, it is the opinion of this office that legislation allowing certain condemned prisoners

to become organ donors and thereby reduce their sentences to life in prison without the possibility of parole or giving inmates time off for organ donation could similarly be a violation of the federal statute. Of course, only a court could resolve this issue with finality.

As to the question of providing an exclusion from state income taxation with respect to organ donation expenses, the

March 17, 2000 Kansas Attorney General's opinion specifically dealt with the question of whether legislation providing tax credits for anatomical donations violates the referenced federal statute. The opinion stated that
*3 [w]ith the exception of reasonable payments for the costs associated with the procurement of the organs, the federal statute prohibits the payment of valuable consideration for the transfer of human organs used in human transplantation. A tax credit is valuable consideration, and thus we must

determine whether the payment of the tax credit... for blood donation is prohibited and whether the tax credit. . .for the organ donation is prohibited. . .[I]n our opinion. . .(the legislation). . .which provides a tax credit for the donation of blood, blood derivatives and products, does not violate the federal prohibition against the transfer, acquisition, or receipt of human organs for valuable consideration

because there is no federal prohibition against the transfer of blood and blood derivatives. . .(As to the

legislation which). . .provides a tax credit for donation of a body part. . . [sjince the federal prohibition applies only to the transfer of human organs, only body parts that meet the definition of human organs. ..(as specified in the federal legislation)... are subject to the prohibition... Accordingly, in our opinion, the tax credit for the donation of body parts for human transplantation... provides valuable

consideration for the transfer of human organs in violation of federal law.

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The Honorable Ralph Anderson, 2009 WL 1968583 (2009)

The March 17, 2000 Kansas Attorney General's opinion is the sole authority that I have located in my research that

has dealt with such issue. Therefore, consistent with the referenced opinion, this office would similarly conclude that providing an exclusion from state income taxation by tax credits with respect to organ donations as defined by the federal

legislation would be prohibited.

With respect to an exemption for unreimbursed expenses associated with an organ donation, I have found no opinions of other attorneys general or case law directly on point. However, as noted above, 42 U.S.C.A. § 274(e) states that "[i]t

shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce." Pursuant to subsection (c)(2) of that provision, the term "valuable consideration" "...does not include the reasonable payments associated with the removal, transportation, implantation, processing, preservation, quality control, and storage of a human organ or the expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of

the organ." Therefore, there is an exemption for certain expenses incurred by the donor in association with the donation of an organ. Moreover, as to the State authorizing tax credits, generally, it is recognized that the legislature may enact tax credits through legislation. See: Ops. Atty. Gen. dated April 1, 2009; January 11, 2008. In an opinion of the Washington Attorney General dated April 12, 1951, it was stated that "[a] state legislature has very broad discretion in making classifications in the exercise of its taxing powers." As similarly referenced in an opinion of the Iowa Attorney General dated December 11, 1984 in upholding a tax credit,

*4

...the legislature of a state has very broad discretion in creating classifications within a tax

program. Therefore, as long as a classification is based on a rational basis and does not involve a

suspect classification (race, religion, national origin), it will be upheld as constitutional. Moreover, any reasonable distinction the government makes for the classification will be deemed sufficient.

See also: Op. Nevada Atty. Gen. dated April 16, 1981 (as to tax credits, "[t]here exist no constitutional provisions that limit the legislature's discretion to enact programs that benefit certain classes of citizens, if the laws enacted are general

laws and of uniform application throughout the state."). Therefore, in the opinion of this office, legislation creating a tax credit associated with unreimbursed expenses associated with organ donations may be upheld.

If there are any questions, please advise.
Very Truly Yours,

Henry McMaster

Attorney General
By: Charles H. Richardson

Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook

Deputy Attorney General
2009 WL 1968583 (S.C.A.G.)

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