A Lifesaving Legal Ruling on Organ Donation: Allowing payment for some bone-marrow transplants is a small but profound first victory.

The Wall Street Journal, December 6, 2011

By Sally Satel

In October of 2009, Kumud Majumder, the father of an 11-year-old son with advanced leukemia, joined a lawsuit challenging the federal ban on compensating bone-marrow donors. He wanted to save his son’s life. Last week Mr. Majumder and his co-plaintiffs enjoyed a victory. The U.S. Court of Appeals for the Ninth Circuit ruled that the majority of bone-marrow donors may lawfully be compensated.

In a unanimous ruling, the court rejected the position of the U.S. Department of Justice that obtaining bone-marrow stem cells through a needle in a donor’s arm—in much the same way that blood plasma and platelets are collected—violates the ban on paying for organs established by the 1984 National Organ Transplant Act (NOTA).

“The ruling could save hundreds or thousands more lives a year,” according to Jeff Rowes of the Institute for Justice, who was lead counsel on the case.

Pivotal to the judges’ decision was the fact that modern bone-marrow procurement makes the process akin to drawing blood. In the early 1980s, when NOTA was written, the process was more demanding, involving anesthesia and large hollow needles that extract marrow directly from the donor’s hip bone.

Today more than two-thirds of all donations are accomplished through a process called apheresis. Blood is taken from a donor’s vein and filtered to collect the circulating bone-marrow stem cells—a special type of blood cell from which all other blood cells are made—and then returned to the donor through a needle in the other arm. The court held that these filtered bone-marrow stem cells are merely components of blood, which like whole blood and plasma can already be paid for under NOTA.

Yet despite improved technology, 2,000-3,000 people die annually before a bone-marrow match can be found. Tragically, Kumud’s son, Arya, was one of them.

Matches are hard to find because there are many types of proteins on bone-marrow stem cells. Relatives are likely to share many of the same versions of the genes that code for these proteins, but even so only 30% of bone-marrow recipients will find a successful match within their family.

The odds of compatibility are especially poor for people of mixed-race parentage and for African Americans, whose heritage tends to be a mix of African, white and Native American genes. A bigger pool of donors boosts the likelihood of finding others who share rare combinations of genetic markers.

Another difficulty is that the national bone-marrow registry, which keeps a database of willing donors, can lose track of them. People the registry does locate not uncommonly have changes of heart. To encourage more potential donors to register, stay in touch and follow through if they match, MoreMarrowDonors.org wants to offer a $3,000 scholarship, housing allowance or a gift to a charity of the donor’s choice.

At one level, the Ninth Circuit ruling is narrow: Only cells collected in a certain way are deemed exempt from NOTA, making their donors eligible for compensation. But the decision has broad implications for transplant policy in general because it underscores the profound weakness in our altruism-only transplant policy—not only relating to bone marrow, no matter how it is collected, but also for the thousands who die each year awaiting a kidney, liver, heart or lung.

As the judges pointed out, there is no logical basis for allowing compensation for blood, sperm and eggs while disallowing bone-marrow cells obtained through apheresis. Nor is it a novel cause for alarm that the better-off will be at an advantage in purchasing. This is already true for egg donation and maternal surrogacy. In contrast, all serious proposals for revising NOTA have advanced a system in which a third party would provide in-kind incentives for bone marrow and other organs as well.

The Ninth Circuit decision should also spur a moral dialogue about the idea of “commodification.” Giving a body part “free” is noble, some say, but accepting compensation is illegitimate, a sordid affront to human dignity.

How absurd. Dignity is affirmed when we respect the capacity of individuals to make decisions in their own best interest, protect their health, and express gratitude for their sacrifice. The true indignity is to stand by while thousands of people die each year.

Attorney General Eric Holder now has until February to decide whether the government will appeal the bone-marrow decision to the Supreme Court. He should not. As more lives are saved, more minds will change about the power of incentives to transform transplant policy.

Dr. Satel is a resident scholar at the American Enterprise Institute. Along with James. F. Childress of the University of Virginia, she submitted an amicus brief in Flynn v. Holder.