Justice department appeals recent court ruling allowing bone marrow donors to be compensated

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 Justice Department and the National Marrow Donor Program have moved quickly to try to get the decision overturned.

“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."

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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...)