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Cancer Patients Sue To Overturn Ban On Compensating Bone Marrow Donors

by @ 5:36 pm on November 3, 2009. Filed under Individual Liberty

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 ?

3 Responses to “Cancer Patients Sue To Overturn Ban On Compensating Bone Marrow Donors”

  1. Old Geezer says:

    While I entirely agree with the intent of this suit I am having a hard time finding a constitutional basis for it. Where is the constitutional provision guaranteeing the right to sell bodily parts or fluids? I do not think the framers considered this any more than they considered the right to fly. These were equally impossible in their era and were not worthy of consideration. If, on the other hand, there is a reasonable nexis between what the framers were thinking and the selling of “replaceable” body parts, why can’t I sell an irreplaceable but not necessary part like part of a liver, a kidney or, perhaps in the future, one lobe of a lung? It should seem to be an similar right under the constitution, shouldn’t it?

  2. Louis says:

    The problem is that paying people to donate bone marrow will cause those who are poor to bear the burden of this. Although medical operations are often very low risk, a risk still exists. Someone in a difficult situation could turn to this as their way out and get injured or sick. Although a person would agree to the procedure, they might not autonomously be making the decision because external factors might force them to resort to donate their marrow.

    Though I agree with the utilitarian sentiment, I’m not convinced that marrow should be treated the same as blood. I think there are ways to reward such altruistic donations differently, specifically in the long term. Maybe putting money in a retirement account, eligible to be withdrawn only upon retirement? This would make bone marrow donation a long term commitment rather than a means to an immediate end. There are other potential solutions, but if the donor is motivated by the idea immediate money, the solution will lead to many ethically questionable procedures.

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