Young black man escorted by Rio police officers

On February 13, newly-elected congressman Daniel Silveira put forward two bills to propose that casualties in police shootouts would automatically have their bodies harvested for organs. “The line of people waiting for donors is long, slow-moving, and often good people, fighting for their lives, die,” Mr. Silveira wrote in the caption of an Instagram post introducing the bills to voters. “Now, when a police officer neutralizes a criminal, he can say with propriety: I saved a life.”

His bills seek to frame the donations of organs, bodily tissue, and cells as reparations for the moral and financial damage inflicted on society by crime. But, in addition to being medically impractical, critics argue that Mr. Silveira’s bills are unconstitutional and could signal a radical departure from the universal law of the presumption of innocence.

A military police officer-turned-politician, the congressman from Rio de Janeiro gained notoriety during the 2018 election campaign, when he and fellow then-candidate Rodrigo Amorim vandalized a street sign bearing the name of assassinated city councilor Marielle Franco. The proposed laws fit in with Mr. Silveira’s curated, tough-on-crime public image—but have proved divisive among Brazilians, provoking instant praise and criticism on social media in the days following their announcement.

Even among supporters, some doubts surfaced regarding the practicality of such policies.

Daniel Silveira, destroying a street name sign that honored Marielle Franco

Daniel Silveira, destroying a street name sign that honored Marielle Franco

The laws of organ donation in Brazil

More than 30,000 Brazilians are waiting for organ transplants, according to 2018 data from the Brazilian Association of Organ Transplantation. However, Brazil also carries out the second highest number of transplants on the planet, and the most for any public health system. Though donations have been increasing in recent years—Brazil saw a 75-percent bump in organ donation between 2010 and 2017, saving a record 26,200 lives in 2017 alone, according to government figures—families still get in the way of approximately 43 percent of donations.

A part of Brazil’s success with organ donation is due to the fact that it was automatic until 1997. However, thanks to a new law that came into force in 2001, experts say Mr. Silveira’s bills contain serious legal flaws that make them unfeasible and unconstitutional. Under current legislation, the Ministry of Health now requires the deceased individual’s family—who have a right to determine the treatment of the body, to solicit a funeral, and to determine its fate based on religious beliefs—to consent before any donations can be performed.

“The bodies of the dead, independent of who they are, do not belong to the state but to their families,” said Ariel de Castro Alves, a lawyer and advisor to the State Human Rights Council of São Paulo (Condep). “Organ donation is not compulsory, it depends on the desire of the living person and their family’s consent.”

The bills also raise even graver concerns about the very basis of Brazil’s criminal legal system.

“It harms various principles of the Constitution—firstly, the presumption of innocence,” said Margarete Pedroso, coordinator of the Legislative Monitoring Center of the Human Rights Commission of the Brazilian Bar Association in São Paulo. There is no legal state of being in the act of committing a crime, Ms. Pedroso says—a person can be a suspect and found guilty after trial, but is presumed innocent until this point and cannot face trial after death.

“An ‘indication’ of having committed a crime would already begin to lose the presumption of innocence,” said Ms. Pedroso. “You cannot presume that someone was committing a crime.”

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Brazil’s Police is one of the world’s deadliest

Both Mr. Alves and Ms. Pedroso are alarmed by the demographic likely to be most affected by such measures as those proposed by Daniel Silveira. Brazil’s police are well-known for being among the most lethal in the world: more than 5,000 Brazilians were killed by police in 2016. The death toll contributes to Brazil’s position among countries with the world’s highest homicide rates. But the victims, particularly of police operations, are overwhelmingly young, black men from poor urban areas: government data shows that more than 50 percent of all homicide victims are under 30 years of age and 71 percent of them are black.

“The large majority of those who die during police operations, and those who make up our prison populations, are poor and black,” said Ms. Pedroso. “Behind this [initiative] there is a message: that these bodies cannot occupy any space in our society, that they are of so little value to the state that even the family’s rights are diminished.”

In response to The Brazilian Report’s questions over the legal viability of the bills, Mr. Silveira defended the legality of his bills, saying he considers them as healthcare-related, rather than “a matter of justice.” However, PL 729 specifically references corpses which “show indications of death as a result of criminal action.”


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Bills have little to no medical utility

Even removing legal qualms including a family’s right to the body and ethical concerns about formalizing institutional racism, the two bills would likely still prove to have little practical use. Organ donation remains a precarious process anywhere in the world, due to necessary conditions of death and the bill of health needed for doctors to sign off on organ suitability.

Within six hours of the heartbeat stopping, organs are no longer viable. The first to expire is the heart, four hours after death; the kidneys have the longest period of viability, lasting up to 48 hours according to the Ministry of Health’s guidelines. But for organs to last as long as this, the patient must be declared brain dead but their blood must be kept flowing artificially.

“The death usually has to take place inside a hospital, to allow for time to remove the healthy organs which would be suitable for transplantation,” said Dr. Thelma Parada, coordinator of the University of São Paulo’s voluntary corpse donation program. Although it is possible that someone might get to the hospital with life and pass away during treatment, Dr. Parada says the question of how viable their organs might be would depend heavily on “the circumstances in which they arrive.”

For those killed during police operations, whose bodies are likely to have been left on the hot cement streets of peripheral communities where such operations frequently take place, their cadavers are unlikely to meet the criteria—making PL 727, specifically geared towards organ donations, impossible to implement.

Still, PL 729 would allow for donations for other scientific ends. “We always need bodies,” said Dr. Parada. USP’s anatomy department will accept bodies or body parts in any condition they arrive in – even stray limbs. “That body might not save anyone’s life directly, but we believe that the more bodies our students have to study, the better trained they will be.”

Mr. Silveira dismissed concerns as to the medical practicalities of his proposal, instead asserting that his bill is informed by “compliance with the technical criteria governing the law for organ transplants.” Experts believe that the likelihood of either bill passing remains tiny, due to the technical flaws contained within them, but they worry that the proposals set a dangerous precedent.

“It’s an incentive to a certain type of police violence: saving a ‘good person,’ [by] killing a thug,” said lawyer Ariel de Castro Alves. “It will generate commissioned deaths of poor people, young people, residents of the periphery.”

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BY Ciara Long

Based in Rio de Janeiro, Ciara focuses on covering human rights, culture, and politics.