The libertarian legal firm Institute for Justice has filed suit in Arizona on behalf of a group of cancer patients seeking to overturn a Federal law making it crime to compensate a bone marrow donor:
Arlington, Va.—Every year, 1,000 Americans die because they cannot find a matching bone marrow donor. Minorities are hit especially hard. Common sense suggests that offering modest incentives to attract more bone marrow donors would be worth pursuing, but federal law makes that a felony punishable by up to five years in prison.
That is why on October 28, 2009, adults with deadly blood diseases, the parents of sick children, a California nonprofit and a world-renowned medical doctor who specializes in bone marrow research joined with the Institute for Justice to sue the U.S. Attorney General to put an end to a ban on offering compensation to bone marrow donors.
The National Organ Transplant Act (NOTA) of 1984 treats compensating marrow donors as though it were black-market organ sales. Under NOTA, giving a college student a scholarship or a new homeowner a mortgage payment for donating marrow could land everyone—doctors, nurses, donors and patients—in federal prison for up to five years.
NOTA’s criminal ban violates equal protection because it arbitrarily treats renewable bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells—such as blood—for which compensated donation is legal. That makes no sense because bone marrow, unlike organs such as kidneys, replenishes itself in just a few weeks after it is donated, leaving the donor whole once again. The ban also violates substantive due process because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.
Jeff Rowes, a senior attorney with the Institute for Justice, said, “The only thing the bone marrow provision of the National Organ Transplant Act appears to accomplish is unnecessary deaths. A victory in this case will not only give hope to thousands facing deadly diseases, but also reaffirm bedrock principles about constitutional protection for individual liberty.”
This is the first time NOTA has ever been the subject of a constitutional challenge.
If compensating donors will mean more people live, what could possibly be wrong with it ?