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Cancer Patients Seek to Overturn Ban on Paying for Bone Marrow
The National Law Journal
October 30, 2009
Prohibiting someone from making money for donating an irreplaceable kidney is one thing. But what about donating bone marrow, which replenishes itself within weeks?
That question is at the heart of a new lawsuit, filed Monday, challenging the constitutionality of the federal law that prohibits compensating bone marrow donors. The plaintiffs want to make modest recompense for such donors legal -- say, paying partial tuition for a college student or making a mortgage payment for a first-time home buyer.
In the lawsuit filed Monday in the U.S. District Court for the Central District of California, cancer and blood disease patients and health care advocates are suing U.S. Attorney General Eric Holder Jr. to enjoin enforcement of provisions of the National Organ Transplant Act of 1984 that criminalize compensating donors. They argue the statute violates due process rights and interferes with public health.
"This constitutional challenge is about an arbitrary law that criminalizes a promising effort to save lives," the complaint states. A bone marrow transplant is often the "only hope" for tens of thousands of Americans diagnosed with a deadly blood disease such as leukemia. "There is a desperate shortage of unrelated marrow donors, particularly for minorities," the complaint says.
Offering modest incentives to attract more donors could end that shortage, argued Jeff Rowes of the Arlington, Va.-based Institute for Justice, who is the lead attorney for the plaintiffs.
"The point is to make more people sign up," Rowes said. "Offering a college student a scholarship for donating bone marrow shouldn't send you to prison for five years. The problem right now, especially for racial and ethnic minorities, is it's very hard to find an unrelated bone marrow donor."
According to Rowes, Caucasian patients can find a bone marrow donor about 75 percent of the time, but African-American patients have only a 25 percent chance of finding a matching donor.
Rowes called the National Organ Transplant Act "fundamentally irrational" in that it treats bone marrow like solid organs, such as a lung, when it's really more like blood. He noted that when Congress passed the statute, it was to prevent kidneys, lungs and other organs from being sold on the black market. Bone marrow got tucked in at the end of the legislation, he said.
Rowes expects some in the medical profession to object to the compensation plan on the grounds that all donations of body parts should be altruistic. He said some doctors may also be concerned that donors who need the money may hide potential health problems.
According to Rowes, there are about 7 million registered potential bone marrow donors in the United States. At any given time, he said, 7,500 people are searching for a match. About 1,000 people die a year because they can't find a matching donor.
The U.S. Department of Justice, which was served with the lawsuit Wednesday, declined comment, citing departmental policy not to comment on pending litigation.
