Ban on paying bone marrow donors challenged in court

The federal law criminalizing financial incentives is unconstitutional, a group of patients argues in a lawsuit. But critics say the case is a stretch.

By Kevin B. O’Reilly — Posted Dec. 21, 2009

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Not every patient in need of a lifesaving bone marrow transplant can find a matching donor. So a handful of cancer patients, a bone marrow transplant physician and an online group are suing the Justice Dept. to try to increase the odds.

The lawsuit, filed in October against U.S. Attorney General Eric Holder in his official capacity, argues that the 1984 National Organ Transplant Act violates the Constitution's 14th Amendment guarantee of equal protection under the law. The law bans the sale of organs and threatens a prison sentence of up to five years for anyone convicted of breaking it.

The law is wrong, the plaintiffs say, because it treats bone marrow -- a renewable bodily resource -- the same way it treats solid organs such as lungs and eyes. Patients who donate blood, sperm and ova can be compensated legally. The group argues that financial incentives for bone marrow could help reduce the shortage for transplants.

"It's a constitutional issue, because the law abridges the right of our clients to secure otherwise legal medical treatment that is safe, effective and accepted," said Jeff Rowes, a senior attorney with the Institute for Justice, a libertarian law firm in Washington, D.C., that is handling the case.

One of the plaintiffs Rowes represents is, a California nonprofit group that wants people who donate bone marrow to be compensated up to $3,000.

"Our clients want to run a pilot program to test whether compensation works on a modest scale," Rowes said. "Then we could have a debate about whether this can be done sensibly or ethically for everyone."

But the law forbids that kind of experimentation, Rowes said. Another plaintiff is John Wagner, MD, director of pediatric hematology-oncology and blood and marrow transplantation at the University of Minnesota's Masonic Cancer Center.

"No one questions the science behind marrow donations," Dr. Wagner said. "The only question is why we don't try compensation. We can demonstrate through a pilot program that compensation can be offered in a safe and ethical way. Although compensation will be used to encourage bone marrow donations, because of the science involved and the rarity of finding a bone marrow match, there won't actually be a 'marketplace' for donors."

About 1,000 patients die every year because they can not get bone marrow for transplant.

Payment's down side

The entire process of locating and testing a potential bone marrow donor takes about 40 to 46 hours over six to eight weeks. Marrow donation itself is often handled as an outpatient procedure and 98.5% of donors feel completely recovered within a few weeks, according to the National Marrow Donor Program. Fewer than 2% of donors experience complications due to anesthesia or bone damage. A healthy body replaces lost marrow within four to six weeks.

The NMDP has facilitated more than 35,000 marrow or blood cell transplants since 1987. The group said it agrees with the World Health Organization and the World Marrow Donor Assn. that paying donors is a bad idea.

"The rationale for the current law is to ensure patient and donor safety," NMDP said in a statement. "Offering compensation to potential donors might compel them to withhold important personal health information that would negatively impact the patient. The safety of the donors is equally important. Offering compensation to potential donors might also compel them to withhold personal health information that would normally defer them from donating."

The plaintiffs have a steep legal hill to climb, said Robert Burt, a law professor at Yale Law School in Connecticut, who has written extensively on biomedical ethics and constitutional law.

"To show that [the National Organ Transplant Act] is an equal protection violation -- the basic argument they're making is that the law's irrational, that equal things have to be treated equally," Burt said. "But there is a rational reason for it. ... We may end up with more [marrow], but in terms of the distribution of who gets it, it would turn into a bidding war, and that commercializes the value of life."

The chances are one in a million that two people of the same race are a bone marrow match, according to an April 2008 study by economists at the University of California, Santa Barbara. Six million potential donors whose type has been determined are registered with the National Marrow Donor Program. (See correction)

The Justice Dept. plans to file a motion to dismiss the lawsuit by Jan. 19, 2010. If the case goes ahead, a trial court decision is not likely until the end of 2011.

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Case at a glance

Does the 1984 National Organ Transplant Act violate the Constitution?

A physician, some patients and a nonprofit group have sued the U.S. Justice Dept., arguing that the law banning compensation to bone marrow donors violates the right to equal protection by treating donor payment as a crime similar to black-market organ sales.

Impact: If the plaintiffs are successful, financial incentives could help ease the shortage of bone marrow donors while sparking ethical concerns about exploitation of the poor.

Flynn v. Holder, U.S. District Court, Central District of California, Los Angeles (link)

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External links, a California nonprofit group that wants to pilot-test compensation for bone marrow donors (link)

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This article incorrectly stated the results of a study by economists at the University of California, Santa Barbara. The study, in the September 2009 issue of American Economic Review, stated that the odds that two people of the same race are compatible for a bone marrow match is less than one in 10,000. American Medical News regrets the error.

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