NCPA - National Center for Policy Analysis

Cancer Patients Win Bone Marrow Legal Fight

December 7, 2011

The Ninth U.S. Circuit Court of Appeals recently issued a unanimous opinion granting victory to cancer patients and their supporters from across the nation in a landmark constitutional challenge brought against the U.S. Attorney General, says the Institute for Justice.

  • The lawsuit seeks to allow individuals to create a pilot program that would encourage more bone-marrow donations by offering modest compensation -- such as a scholarship or housing allowance -- to donors.
  • The program had been blocked by a federal law, the National Organ Transplant Act (NOTA), which makes compensating donors of these renewable cells a major felony punishable by up to five years in prison.

Under the decision, this pilot program will be perfectly legal, provided the donated cells are taken from a donor's bloodstream rather than the hip.

  • Approximately 70 percent of all bone marrow donations are offered through the arm in a manner similar to donating whole blood.
  • Now, as a result of this legal victory, not only will the pilot programs be considered legal, but any form of compensation for marrow donors would be legal within the boundaries of the Ninth Circuit, which includes California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and various other U.S. territories.

Originally adopted in 1984, NOTA was designed to prohibit compensation for human organs like kidneys, but not to affect compensation for renewable tissues like blood.  Unfortunately, the statute's definition of "organ" includes "bone marrow" -- even though "bone marrow" transplants do not involve any nonrenewable organ, but are instead simply transfusions of renewable blood cells that donors regenerate in a matter of weeks.  The lawsuit, filed in 2009, argues that NOTA's prohibition on compensating marrow donors is irrational because "bone marrow" is the only renewable tissue for which compensation is banned.

Source: "Cancer Patients Win Bone Marrow Legal Fight against U.S. Attorney General," Institute for Justice, December 1, 2011.

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