Tag: bone marrow

Ninth Circuit Gets It Right, Deregulates the Bone Marrow Market

This blogpost was coauthored by Cato legal associate Chaim Gordon.

Thanks to the Institute for Justice, those suffering from leukemia and various other ailments that require them to wait for a bone marrow match to miraculously appear have new hope. Yesterday’s unanimous opinion by the Ninth Circuit in Flynn v. Holder effectively deregulates the bone-marrow market—and may even encourage lawmakers to rethink the disastrous federal prohibition on compensating organ donors.  (I previously wrote about the case here and here, and you can watch Cato’s forum on it here.)

At issue here is the National Organ Transplant Act, which prohibits patients from compensating would-be donors of life sustaining organs. The Ninth Circuit ruled that NOTA does not apply to blood (or blood subparts), and so it is entirely legal to sell bone marrow stem cells if those cells are extracted from the blood—as they are in 70% of donations—instead of from the bone marrow itself.

Unfortunately, the Ninth Circuit rejected IJ’s argument that Congress has no legitimate authority to interfere with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment. In rejecting this argument, the court effectively held that NOTA’s ban on the sale of actual bone marrow was constitutional because an unregulated market posed certain dangers (especially of the exploitation of desperate patients).

It is highly unlikely that such exploitation could occur under current market conditions, however, because donors and patients have no way of contacting each other without the National Registry system that matches them. And, of course, the choice is not between a prohibition on compensation and complete non-regulation; some regulation may be appropriate, whether by legislation or simple action of the common law akin to how it operates to prevent extortion in other contexts.

The good news is that, with the bone marrow market effectively deregulated, Congress may now be motivated to reexamine its misguided ban on compensating organ donors. One of the greatest obstacles to reforming the prohibition on organ sales is the fortunate fact that relatively few Americans require organ transplants in any given election cycle. According to government statistics, 112,546 Americans are currently on some kind of organ transplant waiting list. That means only around 1 in 3,000 Americans (and their families and friends) would be seriously motivated to demand organ transplant reform from Congress. Congress will now be forced to grapple with its policies regarding bone marrow transplants, which may be an opportune time for advocates to push for wider organ transplant reform.

The Ninth Circuit’s opinion also clears the way for Supreme Court review of NOTA. If this case reaches the high court, IJ can press its constitutional arguments more forcefully. And even if the Supreme Court merely affirms the Ninth Circuit’s opinion on statutory grounds, we will inevitably learn much about the justices’ views on the constitutionality of NOTA more broadly.

For the moment, Flynn v. Holder means that, for the first time in over 25 years, a spotlight has been shined on NOTA and its disastrous effects on Americans’ medical liberty. And that is why the Ninth Circuit’s narrow bone marrow opinion may actually be a significant step toward the rational regulation of organ markets.

For more of Cato’s work in this area, see, for example, this paper and this op-ed.

Compensating Bone Marrow Donation Isn’t the Same as Selling Organs

On Tuesday, the Los Angeles Times published an editorial critical of the Institute for Justice’s lawsuit against the National Organ Transplant Act’s prohibition of compensation for bone marrow donors.  But, as I have written before, Congress has no legitimate authority to interfere with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment. Given the lack of bone marrow donors, the congressional overreach here literally costs lives.

The Times editorial board conveniently ignores the constitutional arguments in IJ’s suit, resting their argument on the “what if?” scenario that the poor may be induced to give up major organs, such as kidneys, if the price is right.  This misses the point of the suit, because bone marrow is regenerative tissue and thus similar to semen and blood plasma – both of which can be donated for compensation.  (Compensated major organ donation is certainly a debate we should have, but it’s not germane here.)

The Times’s argument goes even further, saying that remuneration could induce people to lie about their medical history, citing a recent case in which a man was infected with HIV after a blood transfusion due to a donor lying about his sexual history on his blood donation questionnaire.  While that is lamentable, the blame should fall on the (rare) failure of Red Cross screening procedures, as we know they generally rely on more than the honor system to vet their donors – and the people injured can and should be able to seek legal redress against the negiligent parties.

We wish our friends at IJ the best of luck. You can read more about the case here.  Cato held a forum on the case you can watch here.

Monday Links

The Constitutional Right to Save Lives

Our friends at IJ have filed an exciting new lawsuit, one that, if successful, could save the lives of more than 1,000 people a year: people who die needlessly of assorted blood diseases (including leukemia) because the federal government criminalizes the offering of even modest compensation for bone marrow donation.

That is, the National Organ Transplant Act – which outlawed the sale of kidneys and other organs – for some reason included bone marrow.

NOTA’s criminal ban is unconstitutional because it arbitrarily treats bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells – such as blood or sperm – for which compensated donation is legal.  (That makes no sense because bone marrow, unlike kidneys, replenishes itself in just a few weeks, leaving the donor whole. )

The ban also fails constitutional muster because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

As Chip Mellor, president and general counsel of the Institute for Justice, said in a press release announcing the case:  “Bad things happen when the federal government exceeds its constitutional authority.  In this case, people actually die.  The Institute for Justice intends to stop that and to restore constitutional constraints that prohibit arbitrary limits on individual liberty.”

IJ brought this suit on behalf of adults with deadly blood diseases, the parents of sick children, a California nonprofit, and a world-renowned medical doctor who specializes in bone marrow research.  You can find more information here.  Perhaps more interestingly, IJ senior attorney Jeff Rowes is guest-blogging about the case all week at the Volokh Conspiracy.  Here’s his first post.