NCPA - National Center for Policy Analysis


March 3, 2010

A new federal lawsuit argues that compensating bone marrow donors, currently a crime punishable by up to five years in prison, should be legal.

The suit, brought by the Institute for Justice, a libertarian public interest law firm, argues that the National Organ Transplant Act's ban on paying for bone marrow violates the Fifth Amendment's Due Process Clause. 

  • The Institute for Justice argues that the compensation ban denies equal protection by arbitrarily and irrationally treating renewable bone-marrow cells like non-renewable solid organs such as kidneys.
  • It instead should be treated like other renewable or inexhaustible cells such as blood cells, sperm cells and egg cells, for which compensated donation is legal.
  • The suit also argues that the compensation ban violates Plaintiffs' substantive-due-process right to participate in safe, accepted, lifesaving medical treatment.
  • Marrow typically is fully replenished within weeks of being donated. 

Every year 1,000 Americans die because they cannot find a matching marrow donor.   If donors could be compensated with rewards such as $3,000 scholarship or a month's mortgage payment, Institute for Justice suggests, many of those deaths could be avoided. 

Source: Ronald Bailey, "Marrow Markets," Reason, April 2010.


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