Organ Shortage Deepens as Prisons Lack Clear Organ Donation Rules
A new legal analysis has revealed major gaps in organ donation consent across U.S. correctional facilities, raising serious ethical and constitutional concerns about how the bodies of incarcerated individuals are handled after death.
The report by Anidjar & Levine found that only 40 percent of correctional systems make their organ donation policies publicly available. In some states, wardens or prison administrators can even authorize organ donations without next-of-kin approval.
In Pennsylvania, wardens have explicit authority to sign off on post-mortem donations, while in Alabama, families are suing the University of Alabama at Birmingham, alleging that organs were taken from relatives without consent. A Jefferson County judge has allowed that case to proceed, making it a key test of how courts interpret consent inside custodial settings.
“When correctional systems operate without transparent organ donation policies, they create a constitutional minefield that exposes families to irreversible harm,” said a spokesperson for Anidjar & Levine. “The absence of published consent protocols in 60 percent of U.S. facilities represents a due-process violation that courts are increasingly unwilling to ignore.”
Custody, Consent, and Constitutional Risk
| Jurisdiction | Consent Authority | Policy Transparency | Family Bypass Risk* |
| Alabama (UAB case) | Prison paperwork alleged to replace next-of-kin consent | Limited or unclear | 5 / 5 |
| Pennsylvania | Warden may authorize donation | Published policy | 5 / 5 |
| U.S. average | Varies by state | 40 % published | 4 / 5 |
| Presumed-consent nations | Central registry, opt-out rights | Public and auditable | 2 / 5 |
*Scores estimate risk of bypassing family authorization.
Across the country, consent authority often sits within correctional hierarchies rather than with families. Legal experts warn that this creates a “constitutional gray zone” where the right to control a loved one’s remains may be overridden by institutional policy.
Internationally, presumed-consent systems such as those in Spain and Austria achieve 10–20 percent higher transplant rates by using transparent registries that document individual decisions and reduce ambiguity.
Growing Pressure on a Fragile System
More than 103,000 Americans are currently waiting for organ transplants, and 13 people die every day before receiving one. Meanwhile, oversight failures continue to erode confidence: a Kentucky audit identified 351 incomplete donor authorizations last year, dozens marked as “concerning.”
“Trust is the lifeblood of organ donation,” the study notes. “When families doubt that consent will be respected, participation declines and shortages worsen.”
Anidjar & Levine’s review argues that any policy bypassing next-of-kin consent risks violating the Fourteenth Amendment’s due-process protections as well as state-level anatomical-gift laws. The firm urges state corrections departments to publish clear, publicly accessible consent procedures to prevent litigation and rebuild public trust.
Methodology
The study audited 53 correctional systems between 2020 and 2023, reviewing policy accessibility, court filings from Alabama’s ongoing case, and Kentucky’s oversight records. It incorporated transplant data from HRSA and OPTN (2023–2024) and donor-willingness surveys conducted by U.S. nonprofits. Comparative benchmarks came from peer-reviewed analyses of opt-in versus opt-out consent systems abroad.
Rebuilding Transparency
The authors conclude that clarity in consent procedures is both a legal and moral imperative. Without reform, families will continue to face uncertainty over post-mortem rights, and public skepticism could deepen an already critical shortage.
For access to full state-level data or expert commentary on constitutional implications, visit Anidjar & Levine.
