On Monday, the plaintiffs in a landmark legal challenge secured final victory when U.S. Attorney General Eric Holder declined to ask the Supreme Court to review last year’s decision by a federal court of appeals that it is not a crime to compensate most bone marrow donors. Now, the thousands of Americans struggling with deadly blood diseases such as leukemia may compensate donors without fear of prosecution under the National Organ Transplant Act (NOTA), which criminalizes organ sales and banned compensation for bone marrow donors.
This case began in October 2009 when cancer patients, the parents of children with deadly diseases, a renowned doctor, and a nonprofit called MoreMarrowDonors.org brought suit in Los Angeles, all represented by our organization, the Institute for Justice. The stakes couldn’t have been higher. Doreen Flynn, the lead plaintiff, has three daughters with Fanconi anemia, a genetic disorder that kills by destroying the ability to make healthy blood. Kumud Majumder, another client, lost his beloved eleven-year-old son Arya to leukemia not long after we brought suit.
Our lawsuit targeted the bone marrow provision of NOTA. Originally passed in 1984, the law’s impetus was a plan by a disgraced Virginia doctor named H. Barry Jacobs to bring in kidney donors from developing countries, broker the sale of one of the donor’s two kidneys to an American, and then ship the donor back to his or her country.
Congress did not like Jacobs’ kidney brokerage for several reasons. First, donated kidneys do not grow back, leaving the donor with a permanent deficit. Second, obtaining kidneys requires invasive surgery. And third, there were legitimate ethical concerns about performing an unnecessary surgery on someone and then returning him or her to a developing country without adequate follow-up care.
Whatever the merits of Congress’ objections to Jacobs’ scheme, they do not apply to bone marrow. The “bone marrow” people donate is really just a collection of immature blood cells. By transplanting these immature blood cells into a compatible patient, an otherwise terminal patient regains the ability to make healthy blood. Unlike solid organs such as kidneys, marrow cells constantly regenerate just like regular blood cells, meaning that the donor suffers no permanent loss after donation.
The argument against treating bone marrow like kidneys is even stronger these days because the most common method of donation involves drawing the immature blood cells out of the bloodstream in a process very similar to donating blood. By contrast, when NOTA was passed in 1984, doctors extracted marrow cells from the hip in a surgical procedure using a large-gauge needle. Not only that, Congress deliberately exempted blood donation from NOTA.
The renewability of marrow cells, and the ease with which they may now be obtained, formed the basis for our challenge to NOTA’s ban on compensating marrow donors. Our nonprofit client MoreMarrowDonors.org wants to run a pilot program to determine if strategic compensation — a $3,000 scholarship, housing allowance, or donation to the marrow donor’s favorite charity — will increase donations. But this commonsense experiment was a major federal crime under NOTA, threatening doctors, patients, and donors with up to five years in prison.
We argued that treating compensated bone marrow donation like kidney selling, rather than treating it like compensated blood donation, was so irrational as to be unconstitutional. This past December, the 9th U.S. Circuit Court of Appeals ruled that NOTA — contrary to the Department of Justice’s position — did not criminalize compensating donors who use the modern donation method that is like giving blood. This decision allows MoreMarrowDonors.org to run its pilot program and enable anyone in the United States to use compensation too.
Unhappy with this ruling, the attorney general petitioned the full 9th Circuit to rehear the case in a rare proceeding, but the court declined. That left the U.S. Supreme Court as the only option and, by not seeking review there, the attorney general has accepted the finality of the appellate court’s decision.
For Doreen Flynn, whose eldest daughter Jordan just received a bone marrow transplant in New York, this victory vindicates her conviction that doctors, patients, and donors should have the right to save lives without being thrown in prison. Her commitment to liberty, and her victory for patients and their families everywhere, is a powerful reminder that freedom, not force, is the best medicine.
Jeff Rowes and Bob McNamara are Institute for Justice senior attorneys. For more information on this case, visit www.ij.org/BoneMarrow.