Plan to compensate bone marrow donors moves forward

After a three-year court battle, a plan to offer scholarships and other compensation to bone marrow donors is moving ahead.

U.S. Attorney General Eric Holder has declined to challenge an appellate ruling permitting the practice. Holder’s office had until June 25 to seek a review by the U.S. Supreme Court.

The decision means the end of a long judicial journey and the start of more patients receiving much-needed donations, said Robert McNamara, senior attorney with the Institute for Justice. The civil liberties law firm represented plaintiffs in the case, including nonprofit organization MoreMarrowDonors.org.

“This is a tremendously important case, and the fact that the 9th Circuit is the first court to ever interpret this law means the decision has created a new national rule that governs the entire country,” McNamara said. “Even though the U.S. Supreme Court didn’t hear this case, effectively we have a rule that prevents the attorney general from punishing anyone who wants to offer compensation” to bone marrow donors.

MoreMarrowDonors.org sued Holder in 2009, challenging a federal ban against paying donors for bone marrow. Minnesota transplant specialist John Wagner Jr., MD, and families impacted by bone marrow-related illnesses, joined the suit. They said the 1984 National Organ Transplant Act was wrong to treat marrow cells like irreplaceable organs instead of recognizing their regenerative nature.

MoreMarrowDonors.org wanted to provide scholarships or housing payments to bone marrow donors, but the federal law prevented its plan. Allowing incentives would encourage more people to donate and ultimately save more lives, the plaintiffs said.

The U.S. attorney general’s office argued 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.

A trial court dismissed the case in 2010 in favor of the government. In 2011, the 9th U.S. Circuit Court of Appeals reversed.

The appellate court said donations made using a technique called peripheral blood stem cell apheresis are not covered by the Transplant Act. In the apheresis method, which accounts for about two-thirds of marrow donations, marrow cells are extracted from the blood after the donor takes medication to stimulate production of the cells.

Judges said Congress could not have intended to address the apheresis method when the law was enacted, because the procedure did not exist at the time. Holder appealed to the court for reconsideration, but the appeals court declined the request in March.

Holder did not provide a reason for declining to pursue a Supreme Court review. A spokesman for the Justice Dept. would not comment.

The National Marrow Donor Program expressed disappointment that the appeals court ruling would not be challenged. The program provides a federally funded registry that includes 9 million registered donors.

“Paying marrow donors creates a multitude of problems and will not help more patients receive transplants,” the program said in a statement. “Compensation will limit treatment options for patients, decrease the quality of donations, and divert much-needed money from areas where it can help a wider range of patients.”