American Journal of Law & Medicine

Ninth Circuit Rules Donors May Receive Compensation for Blood-Based Bone Marrow Transplant Donations - Flynn V. Holder

Ninth Circuit Rules Donors May Receive Compensation for Blood-Based Bone Marrow Transplant Donations--Flynn v. Holder (1)--The Court of Appeals for the Ninth Circuit held that the 1984 National Organ Transplant Act (NOTA), (2) which criminalizes the sale of human organs, does not apply to blood stems cells for bone marrow transplantation obtained through peripheral blood stem cell apheresis.

NOTA makes it a felony to buy or sell any human organ to be used in transplantation, and defines "human organ" to include "bone marrow." (3) According to this definition, the Ninth Circuit held that NOTA prohibits compensation for bone marrow transplants using a more invasive, surgical method of extracting bone marrow tissue, known as aspiration. (4) The court found that that NOTA's prohibition of compensation for bone marrow donations does not violate the Equal Protection Clause of the Constitution, as Congress had a rational basis for prohibiting compensation for donations involving significant risks or the potential for commodification, while permitting compensation for donations of other bodily material, such as blood. (5) NOTA's restrictions on compensation, however, do not apply to "bone marrow" transplantations using a newer apheresis method, which involves a less-invasive process that is similar to blood donations. (6)

A diverse group of plaintiffs--including not only parents of children with diseases that can be fatal without bone marrow transplants, but also a physician expert in bone marrow transplantation, an African-American man suffering from leukemia, and a California non-profit corporation, MoreMarrowDonors.org--argued that NOTA should not be read to prohibit compensation for "bone marrow" donations. (7) The physician stated that at least one in five of his patients died because no donor could be found and that other patients experienced complications because the scarcity of donors compelled him to perform transplants sourced from imperfectly matched donors. …

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