By now, there’s been plenty of news highlighting last week’s decision by the Ninth Circuit Court of Appeals that the National Organ Transplant Act of 1984 (NOTA) does not forbid compensation for the majority of bone marrow donors. That’s great news for patients needing marrow transplants. And the non-profit Institute for Justice deserves a tremendous amount of applause for arguing the case. Unfortunately, the decision is far narrower in scope than it has been portrayed by some news outlets. And, although there is plenty here to celebrate, it neither “deregulates the bone marrow market” nor paves the way for compensating organ donation more broadly.
AEI’s Sally Satel had a good piece in yesterday’s Wall Street Journal discussing some of the nuances of the issue. Unfortunately, the headline on Dr. Satel’s op-ed misrepresents the nature of the ruling. (For the record, neither the author nor the primary editor of most newspaper articles has any control over the headlines.) So, here’s a bit more context.
Until recently, bone marrow donations could only be performed by having a large, thick, and very very painful needle pierced through your pelvic bone in order to suck out the liquid marrow. Today, however, the majority of marrow donations are not actually donations of marrow at all. Instead, peripheral blood stem cells are isolated from circulating blood, and those stem cells develop into bone marrow in the new patient. That means that most “marrow” donations can be as simple (more or less) as giving blood at your office’s annual blood drive. (It’s a slightly more extensive process than that. But you get the point.) That’s been a tremendous boon to patients needing marrow transplants, since the process is now far less invasive, less painful, and less risky in the majority of cases.
Unfortunately, as many as 3,000 people still die every year in the United States alone waiting for a marrow transplant because an appropriate match cannot be found. For years, lots of scholars, including us here at CEI, have suggested that it ought to be legal to pay prospective organ donors, particularly in cases where the donor faces minimal (though by no means zero) downside risk from the donation — such as with bone marrow and kidneys. That can’t happen now, though, because NOTA imposes criminal penalties of up to $50,000 and five years in prison for any person who “knowingly acquire[s], receive[s], or otherwise transfer[s] any human organ for valuable consideration for use in human transplantation.” And NOTA explicitly includes bone marrow on a list of prohibited organ sales.
Curiously, it is legal to pay for human blood, semen, and ova donations, which NOTA does not treat as organs. The good folks at IJ developed a clever strategy and argued that peripheral blood stem cells are more analogous to donating blood than bone marrow. And the Ninth Circuit agreed. For purposes of the Act, the court concluded, peripheral blood stem cells should be considered blood parts, not organ parts. That means that it is now legal for approximately 70 percent of bone marrow donors to be paid for their life-saving contribution. Unfortunately, the judges were neither asked to, nor did they, rule on any other issue. Ultimately, the narrowness of the decision serves to reinforce the point that it remains unlawful to compensate “organ” donors.
Arguably, Sally Satel is right to suggest that: “the decision has broad implications for transplant policy in general because it underscores the profound weakness in our altruism-only transplant policy — not only relating to bone marrow, no matter how it is collected, but also for the thousands who die each year awaiting a kidney, liver, heart or lung.” Unfortunately, rational arguments for compensating organ donors have been around for quite some time. But there are still too many people who find it troubling, or unethical, or just plain icky to think that we should permit someone to sell his or her own organs. So, I fear that those of us who support compensating organ donors still have a very long road ahead of us no matter how well the market for blood stem cells actually functions.