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Lawsuit seeks compensation for bone marrow donors

Plaintiffs say the move would create more donors. The government argues that it would exploit the donor match system.

By Alicia Gallegos — Posted March 15, 2011

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A bone marrow transplant specialist and others are challenging a federal ban against paying donors for bone marrow.

The National Organ Transplant Act is wrong to treat marrow cells like irreplaceable organs instead of recognizing their regenerative nature, according to a lawsuit filed by John Wagner Jr., MD, and families impacted by bone marrow-related illnesses. The plaintiffs want the 1984 law amended to allow scholarships or housing payments for bone marrow donors. The incentives would encourage more people to donate and ultimately save more lives, the suit said (link).

Arguments were heard Feb. 15 before the 9th U.S. Circuit Court of Appeals. A trial court had dismissed the case in March 2010 in favor of the government.

The government contends that the ban prevents the poor from being lured into marrow donations by wealthy buyers and keeps the bone marrow match system from being exploited.

In court filings, the U.S. attorney general's office said legislative choices are not subject to courtroom analysis. Congress has determined that people and organizations should not profit from the sale of human organs for transplants and that body parts should not be viewed as commodities, the office said.

But opponents of the law say compensation for bone marrow still would allow for a fair match process.

"No one questions the science behind marrow donations. The only question is why we don't try compensation," Dr. Wagner, a professor at the University of Minnesota, said in a statement. "We can demonstrate through a pilot program that compensation can be offered in a safe and ethical way."

Plaintiffs are not asking that monetary payments be provided to donors, said Jeff Rowes, an attorney for the Institute for Justice, a civil liberties law firm representing the plaintiffs. Compensation in other forms would only encourage more people to register with the National Marrow Donor Program, he said.

Preventing incentives makes no sense, Rowes said.

"There is a powerful resistance to change in both the medical and political communities," he said. "The potential impact of [allowing compensation for bone marrow] could save thousands of lives without doing anyone any harm."

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