I recently posted about the 9th circuit court of appeals' decision to allow some bone marrow donors to be compensated:
Paying bone marrow donors is now legal (depending on how it's done)
Here's the court's
decision.
But it turns out that transactions mostly don't become illegal without someone finding them
repugnant. Just in case you thought bone marrow had been
accidentally included in the ban on compensating donors, the latest news (pointed out to me by Joseph Colucci) is that the Justice Department is contesting the recent court decision:
Government fights court decision that says bone marrow donors may be paid .
"the Obama administration last week asked a San Francisco appeals court to
overturn a
recent
decision that said bone marrow donors can be paid for what their bodies
produce.
"A unanimous three-judge panel last month ruled for
a nonprofit group,
MoreMarrowDonors.org, that wants to
encourage bone marrow donations by offering $3,000 scholarships, housing
allowances or charitable donations to those who are matched with blood disease
patients.
...
"When the transplant act was written in 1984, marrow extraction was painful.
Needles thick enough to suck out the fatty marrow were inserted into a donor’s
anesthetized hip bones, and the cells were taken from the marrow.
Today, a process called apheresis is used about 70 percent of the time.
Donors are injected with a medication that accelerates blood stem cell
production so there are more cells in the bloodstream. The donor sits for hours
in a recliner as a machine collects the “peripheral” blood stem cells and
recycles the blood back into the donor.
The donor group said the application of the organ transplant law violated the
equal-protection clause, because there is no rational basis for government to
treat donors undergoing apheresis differently from blood or sperm donors.
But the three-judge panel said there was no reason to reach the
constitutional question. It is up to Congress if it wants to include blood
marrow in its list of items that cannot be sold, the court said. But the
apheresis method extracts only blood and thus there is no prohibition on paying
for it, the court said.
“It may be that ‘bone marrow transplant’ is an anachronism that will soon
fade away” as the blood extraction method replaces needle-extraction of bone
marrow, Judge Andrew J. Kleinfeld wrote, “much as ‘dial the phone’ is fading
away now that telephones do not have dials.”
“The panel’s ruling rests on legal errors of exceptional importance,
threatens to disrupt current patient care and undermines Congress’s clear policy
of encouraging voluntary bone marrow donations,” the Justice Department said in
asking the full U.S. Court of Appeals for the 9th Circuit to rehear the
case.
The donor registry, which last year matched 5,000 patients with unrelated
donors, said in a statement that the decision could have “unexpected and
disastrous consequences” for patients.
The panel’s decision in
Flynn v. Holder noted that there are obvious
reasons for prohibiting selling organs or even blood marrow cells, which
requires a precise genetic match. “Congress might have been concerned that every
last cent could be extracted from sick patients needful of transplants, by
well-matched potential donors making ‘your money or your life’ offers,” the
opinion said.
The donor registry said its experience is that “a donor system that relies on
the human desire to help others is far superior to one that focuses on
self-gain.”
Mitchell and Institute for Justice lawyer Jeff Rowes got both more and less
than they wanted from the 9th Circuit decision. Mitchell said the ruling
indicates that his group could directly pay donors rather than offering
scholarships or charitable donations.
Rowes, meanwhile, said he had hoped the court would look at the
constitutional question and whether the government had a rational basis for
including bone marrow in its list of organs. His group is eager for the Supreme
Court to weigh in on that test, which he said is “code for the government gets
to do whatever it wants.”
Depending on what the 9th Circuit does with the government’s appeal, he still
might get the chance."
***********
Background:
Who better than Kim Krawiec to
blog about the legal decision to allow compensation for bone marrow donors
under some circumstances (if the marrow is gotten from the blood rather than the bone).
She points to an article by Harvard Law prof
I. Glenn Cohen in the New England Journal of Medicine,
Selling Bone Marrow — Flynn v. Holder, which says that the ruling is a narrow one, that is unlikely to impact the debate about compensation for other kinds of donation. (That was of course under the assumption that the court's decision will stand...)
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