Update — Let them sell marrow

As recommended in the Chowhound 2011 gift guide, American Wagyu Bone Marrow, 8 bones for $64.95.

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.

The Institute for Justice filedFlynn v. Holder in federal court in Los Angeles to challenge a ban on the compensation of 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 claimed that the ban violated plaintiffs’ rights to equal protection and substantive due process under the Fifth Amendment because the ban 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.”

Earlier today, the Ninth Circuit ruled reversed a lower-court decision barring compensation for all bone-marrow donations.  The Ninth Circuit reasoned that that technological advancements had made bone marrow a process nearly identical to giving blood plasma.  “[S]pecialized cells that grow into marrow are taken from a donor’s bloodstream, so the procedure is basically a blood donation, not an organ transplant . . . .”  The court reasoned that because bone marrow isn’t harvested from the donor it is not covered by the statute that bans compensation for the harvesting of any organs.

The ruling makes a lot of sense and seems to be narrowly tailored to the facts of this case.  So, it seems unlikely that the Supreme Court would grant cert. (if the ruling is appealed).  The Ninth Circuit dodged the tricky constitutional issues and took issue with the interpretation and application of the statute.  The Court bought the argument that there was a loophole in the statute.  Specifically, it held  that compensation for bone marrow is not covered by the statute.  So don’t look for the legalization of the sale of body parts anytime soon.

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~ by siouxsielaw on December 2, 2011.

One Response to “Update — Let them sell marrow”

  1. Interesting case. That raw bone marrow looks disgusting. None for me, thank you.

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