In December, a federal appeals court ruled in Flynn v. Holder that the National Organ Transplant Act of 1984 (NOTA) does not forbid compensation for the majority of “bone marrow donors.” That was great news for patients needing bone marrow transplants: As CEI’s Greg Conko noted earlier, the court’s ruling clarified that it is legal for approximately 70 percent of donors to be paid for their life-saving contribution, compensation that is essential because around 3,000 Americans die every year waiting for a marrow transplant because an appropriate match cannot be found. Only compensation provides an incentive for additional donors to come forward and contribute their life-saving cells.
I put “bone marrow donors” in quotes, because 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 procedure is not covered by the plain language of the NOTA statute, which only bans sales of organs and organ parts, not blood parts.
Now, the Obama administration is asking the appeals court to vacate its ruling allowing donors to be compensated, and to rehear the case en banc. It argues that whatever the text of the NOTA statute may say, its reach should be judicially extended beyond organs to peripheral blood stem cells, in order to guard against the evil of “market forces”:
The Obama administration has asked a federal appeals court to reconsider its decision last month to allow compensation to people donating bone marrow cells harvested from their bloodstreams.
In a petition for rehearing by the full U.S. 9th Circuit Court of Appeals, Atty. Gen. Eric H. Holder Jr. argued that the court ignored the intent of Congress to shield all organ sales from “market forces” when a three-judge panel ruled unanimously on Dec. 1 that marrow cells collected from blood aren’t covered by the 1984 National Organ Transplant Act.
But there is no legal prohibition against “market forces” as applied to human cells, however much the Obama administration may hate “market forces.” Everyone acknowledges that it is perfectly legal to pay for human blood, semen, and ova donations, which NOTA does not treat as organs. The Institute for Justice cogently 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 appeals court concluded, peripheral blood stem cells should be considered blood parts, not organ parts. It “said bone marrow cells filtered from the donor’s bloodstream were blood parts, which can be sold legally, not organ parts covered by the 1984 ban. That law was enacted when bone marrow donation involved a surgical extraction through needles inserted into the spongy marrow in hip bones — a painful procedure legislators feared would be disproportionately endured by the poor if financial inducement were allowed.”
In short, the Obama administration’s position goes beyond the text and the policy rationale for NOTA’s ban on organ donations.
As the president of the Save Lives Now New York Foundation notes, there is a compelling public-policy argument for compensating bone-marrow donors:
The population of the United States will have to consider financial incentives for organ donation because there are not enough organs from deceased patients. Last year an estimated 13,000 patients died from brain death and only 8,000 families said yes to donation. Even if all 13,000 families said yes there would have only been 39,000 transplants (about 3 organs recovered per donor). The waiting list was 110,370 which means that even if all brain dead patients were to be donors, there would have been 70,000+ patients not getting a transplant. These patients are either on dialysis (renal patients) or they are dying. Therefore the medical community has to look to living donors for the needed organs. Almost every living donor is doing so because a mother, father, brother, sister, son or daughter needs a transplant. That’s understandable – love of family motivates them. Last year these family members totaled 6,565. So where will we get the remaining 65,000 donors? There has to be an incentive to encourage strangers to donate. Why should they forego three or four weeks worth of pay checks and be out of pocket for their travel, food, lodging and miscellaneous unreimbursed expenses related to living donation?
Altruism hasn’t EVER covered the need for organ donation – since 1988 when OPTN/UNOS started collecting statistics on this. In the first year (1988) there were 5,000 patients who didn’t get a transplant because of a lack of organs available. In 2010 there were 81,000 who didn’t get on. We have to come up with some appropriate financial incentives to motivate living donors to come forward.
Earlier, kidney donor Alexander Berger made the case for allowing compensation of kidney donors, as a way of saving thousands of lives. Allowing the sale of blood parts, like peripheral stem cells, is obviously an easier thing to justify than organ sales, but many commentators, like law professor Ilya Somin, have argued that organ sales should be legal as well to save lives.