Tag: NOTA

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.

A Life-Saving Approach to Transplantable Organs

Raymond Raad, physician and coauthor of the Cato study, “Bending the Productivity Curve: Why America Leads the World in Medical Innovation,” has an oped at the Daily Caller arguing that the United States could save thousands of lives per year by allowing individuals (or insurance companies, or the government) to pay people who agree to give their organs to patients who need them.

Raad cites the experience of Iran, which has eliminated its waiting list for transplantable organs. (The United States has 83,000 people waiting for kidneys alone. Forty percent will die waiting, and those who do receive a kidney die sooner because their health deteriorates while waiting.) He also cites the three main criticisms of compensating donors/sellers – “One, the prospect of payment can be so tempting that it blinds donors to the risks involved; second, it may lead only poor people to donate; third, it may turn altruistic donors away” – and shows that recent polling data contradicts all three.

Raad concludes:

Since this is the best data we have, and with 5,000 people expected to die this year on the waiting list, we owe ourselves at least a geographically limited experiment in monetary incentives for kidneys.

For more on how eliminating this government-imposed price controls would save lives, read Arthur Matas’ Cato study, “A Gift of Life Deserves Compensation: How to Increase Living Kidney Donation with Realistic Incentives,” and Healthy Competition: What’s Holding Back Health Care, and How to Free It.