March 3, 2011 9:52AM

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.