Siouxsie Says, “Let Them Sell Marrow.”

bone marrow

Photo Credit: Arnold Inuyaki

People want to be able to buy and sell human bone marrow.*  The whole concept sounds ghastly.  Siouxsie loves it.

The Institute for Justice (or as Siouxsie calls them, “The Institute for Commerce”) filed Flynn v. Holder, on Monday, October 26, 2009, in federal court in Los Angeles to challenge a prohibition on compensating bone marrow donors.  The federal statute at issue is the 1983 National Organ Transplant Act (“NOTA”).  NOTA, among other things, criminalizes the compensation of organ donors.  And because NOTA defines organ to include “bone marrow,” bone marrow donors cannot receive compensation.

The Institute for Justice contends that this ban violates plaintiffs’ rights to equal protection and substantive due process under the Fifth Amendment.  They argue that the ban violates equal protection because it irrationally treats bone marrow cells differently from red blood cells, ova, and sperm for which compensation is legal.  The Institute for Justice also maintains that this prohibition “violates Plaintiffs’ substantive-due-process right to participate in a safe, accepted and lifesaving medical treatment.”

Siouxsie hates to admit it, but she agrees with the ultimate goal of the Institute for Justice on this one.

The law doesn’t make a lot of sense.  If it is legal to compensate people for donating their blood, ova and/or sperm, why shouldn’t it be legal to compensate individuals for donating their bone marrow cells?  In many cases, the harvesting of bone marrow cells is very similar to the harvesting of blood cells.  And like sperm and blood cells, bone marrow cells are completely renewable.  (Interestingly, it is permissible to compensate individuals for donating ova even though those cells are neither renewable nor easy to extract.)

Siouxsie, however, thinks that the Institute for Justice got it wrong when they filed this lawsuit.  For one, equal protection does not apply to cells or body parts; it applies and protects groups of people.  In any event, health and safety regulations are almost never overturned under a rational basis review.   And here, the standard is easily met (Siouxsie reminds you that when Congress enacted NOTA 25-years ago, both the harvesting technology and the medical uses for these cells were quite different than today).

Nor does Siouxsie think the substantive-due-process claim can or should win.  If the Court agrees with the Institute for Justice and concludes that NOTA violates plaintiffs’ “right to participate in a safe, accepted and lifesaving medical treatment,” then any court could strike down the remaining restrictions on the purchase and sale of organs and body parts.  Although the Institute for Justice took great pains to try to avoid this gruesome and slippery slope, they cannot.

So what is the solution?  Siouxsie says, go to Congress to fix it.  Perhaps, a savvy hill staffer will read this blog and inject marrow reform into the healthcare debate.

*Under the scheme that is before the Court, donors would get a $3,000.00 donation made in their name to the charity or scholarship of their choice.


~ by siouxsielaw on November 2, 2009.

One Response to “Siouxsie Says, “Let Them Sell Marrow.””

  1. […] More than two years ago, I blogged about a early stages of a lawsuit involving the sale of human bone marrow.  My original post can be found at this link. […]

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